4 


PRACTICAL  TREATISE   ,Qtl»^^ 


THE  LAW  OF  TRUSTS 


TRUSTEES. 


BY 

THOMAS    LEW  IN,    ESQ., 

or    TKIXITT    CoLLEiJE,    OXOX^    M.  A.,    AXD    OF    U?(C0L.<«'8    IX<<,    DAHRISTER-AT-LAW, 

OKI  or  Till 

OO.XVETAXCIXO    COIXSEL   TO   TDE   COCBT   Of    CUANCEItY. 


SECOND  AMERICAN,  FROM  THE  THIRD  LONDON  EDITION. 


PniLADELPUIA: 

T.  &  J.  W.  JOHNSON  &  CO., 
LAW    BOOKSELLERS    AND    TUBLISHERS, 

No.     636    CHESTNUT     STREET. 

18  58. 


I?^- 


T 


Rotb,  Pile  Sc  U'Eircy,  Pr'a, 
Ledge  Street,  Tbilada. 


Ta  the  iligM  ;^]ononl)lc  %qx^  §t.  ^fonariis, 


ETC.    ETC.    ETC. 


My  Lord, 
The  rare  talents  mid  inilifutignblc  iiulustry.  whidi.  without  any  extrinsic  aid. 
have  raised  your  Lordsliipto  tlie  most  honorable  eminence,  command  the  admira- 
tion and  respect  of  every  Mejubcr  of  the  Profession. 

Personally,  I  feel  myself  under  peculiar  oblipations.  Your  Lordship's  writings 
have  been  the  models,  and  have  furnished  no  small  part  of  the  materials,  for  the 
present  treatise;  and  your  Lordship's  appointment  of  me  as  one  of  the  Convey- 
ancing Counsel  to  the  Court,  has  enabled  me  to  bring  to  the  revision  of  my  work 
an  enlarged  practical  experience. 

Permit  me.  my  Lord,  on  these  public  and  private  grounds,  to  dedicate  tlie  fol- 
lowing pages  to  your  Lordship  ;  and  witli  the  earnest  hope  that  your  Lordsliip's 
valuable  life  may  long  be  preserved  to  the  Profession  and  the  community  at  large, 
I  remain  your  Lordship's  most  obliged  and  grateful  servant. 

THE    AITTUOIJ. 


"yR 


TT    -r       ^; 


rUEFACE. 


In  the  present  Edition  the  Author  has  recast  the  earlier  part  of  the 
work,  and,  besides  incorporating  recent  cases  and  statutes,  and  inter- 
spersing much  additional  matter  throughout,  has  appended  a  supplemen- 
tary chapter  on  Pleading  and  Practice. 

The  correction  of  the  press  was  kindly  undertaken  lor  the  Author  by 
Mr.  F.  0.  Haynes,  whose  extensive  knowledge  of  law  and  careful  research 
are  well  known  at  the  Chancery  IJar.  Had  the  labours  of  Mr.  Ilayues 
gone  no  further,  the  Author  would  have  felt  grateful  fur  tlie  assistance, 
but  in  fact,  3Ir.  Ilaynes,  as  the  sheets  passed  through  hi;,  hands,  has 
identified  himself  with  the  Author,  and  examined  into  the  law — has 
inserted  additional  authorities  which  had  been  inadvertently  omitted, 
and  corrected  mistakes  into  which  the  Author  had  occasionally  fallen. 
Moot  points,  also,  as  they  arose  have  been  freely  discussed,  and  the 
reader  has  the  benefit  of  the  conclusions  arrived  at.  The  Author  is  of 
course  to  be  held  responsible  for  the  errors  which  remain,  but  the  value 
of  the  work  (whatever  it  may  be)  has  been  unquestionably  much  enhanced 
by  the  legal  acumen  and  learning  which  Mr.  Haynes  has  imported 
into  it. 

The  Index  has  been  compiled  for  the  Author  by  3Ir.  P.  A.  Kingdon, 
a  much  esteemed  former  pupil.  The  merits  of  this  part  of  the  work  will 
be  best  tested  in  the  use,  but  a  superficial  glance  will  show  that  never 
were  more  pains  taken  to  render  an  Index  as  perfect  as  possible. 

The  Author  begs  in  conclusion  to  thank  his  coadjutors  for  their  timely 


VI 


LEWIN    OX    THE    LAW    OF    TRUSTS,    ETC. 


aid  and  to  assure  them  that  he  appreciates  his  own  performance  much 
more  hic^hly  from  the  circumstance  that  two  gentlemen  of  their  talents 
and  standing,  have  condescended  to  bestow  upon  it  so  much  of  their  time 
and  labour. 


July  4,  1857, 


TABULAR    ANALYSIS. 


The  pages  referred  to  are  those  between  brackets  [ 

PART  I. 

Definition  of  a  trust,  p.  15. 

Classification  of  trusts,  p.  21. 

Creation  of  trusts,  p.  21. 


By  act  of  a  party, 
p.  24. 


By  operation  of 
law,  p.  176. 


I  I  I  I  I 

Necessary  par-     What  property     Formalities     The  object     Of  the   Ian- 
ties     to     a         may  be  made         required,       proposed,        guage  de- 
trust,  p.  24.         subject  to  a         p.  56.  p.  103.  claringthe 
trust,  p.  45.  trust,       p. 

140. 


1 i 

Lawful  Unlawful 

trusts,  trusts, 

p.  103.  p.  131. 


Express  Implied 
trusts,  trusts, 
p. 140.       p.  1C7. 


Executed,     Executory, 
p.  144.  p.  144." 

1  i 

In  marriage  ar-     In  wills, 
tides,  p.  146.        p.  153. 


Settlor,   Trustee,   Cestui     At  com-   Under  Stat.     Under  Stat.   Of  trans- 
p.  24.      p.  30.         que  mon         of  Frauds,  of  Wills,     mutation 

trust,        law,  p.  60.  p.  65.  of    pos- 

p.41.        p.  56.  session, 

p.  81. 


Resulting  trusts, 
p.  176. 


Constructive  trusts,  as  renewal  of 
leaseholds,  «&c.,  p.  217. 


Legal    interest,    but    not    the 
equitable,  disposed  of,  p.  176. 


Upon  purchases  in  names  of 
third  persons,  p.  199. 


By  presumption         By  force  of  words,         In  name  of  a  stran-         In   name  of  a 
of  law,  p.  177.  p.  181.  ger,  p.  199.  child,  p.  207. 


Yin 


LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 


PART  II. 

The  Trustee. 


Disclaimer  and  ac- 
ceptance, p.  232. 


The  legal  estate  in  the 
trustee,  p.  246. 


The  ofiBce  of  trustee, 
p.  289. 


How  vested, 
p.  246. 


Properties 
of  estate, 
p.  260. 


■^'hat  owners 
of  the  estate 
bound  by  the 
trust,  p.  279. 


At  common  law, 
p.  260. 


By  statute, 
p.  273. 


General  properties,     Duties  of  trustees.     Powers,     Allowances,     Relinquishment 
p.  289.  p.  326.  p.  512.  p.  545.  of  office.p. 565. 


1.  Renunciation,  p.  289. 

2.  Delegation,  p.  290. 

3.  Joint  nature  of  the  ofiBce, 

p.  297. 

4.  Survivorship,  p.  299. 

5.  Liability,  p.  302. 

6.  Trustee  excluded  from  all 

benefit,  p.  318. 


General,     For  trouble,  p.  545. 

p.  512.     For  expenses,  p.  557. 
Special, 

p.  524. 


I  \ 

By  consent  of  By  power, 

ceshd      que  p.  566. 

trust,  p.  565. 


By  suit, 
p.  582. 


II  I  I  I                         I 

In  trusts     In  trusts  of  In  trusts  to  pre-  In   trusts  In  trusts  for  In  trusts  for 

of  per-       renewable  serve  contin-  for  sale,  payment  of          charities, 

sonalty,      leaseholds,  gent  remain-  p.  414.  debts,  p.               p.  492. 

p.  326.        p.  383.  ders,  p.  404.  474. 


1.  Reduction  into  possession,  p.  326. 

2.  Safe  custody,  p.  332. 

3.  Investment,  p.  337. 

4.  Liability  of  trustees  to  payment  of 

interest,  p.  358. 

5.  Distribution  of  the  trust  fund,  p. 

365. 


General  Trustees' 
duties,  receipts, 
p.  414.       p.  428. 


Purchase  of  the 
trust  property 
by  trustees,  p. 
460. 


TABULAR    ANALYSIS. 

PART  III. 

The  Cestui  que  Trust. 


Estate  as  be- 
tween cestui 
que  trust 
and  trus- 
tees, p.  585. 


Estate  as  affect- 
ed by  dealings 
of  cestui  que 
trusty  or  by 
operation  of 
law,  p.  600. 


Subsidiary 
rights  of 
cestui  que 
trusty  p. 
693. 


Maxims  of  equity 
in  support  of the 
cestui  que  trusts' 
estate  against 
the  acts  of  the 
trustee,  p.  792. 


Statutory  enact- 
ments remedy- 
ing inconveni- 
ences from  the 
disability  of  the 
trustee,  p.  832. 


In  the  sim-   In  the  spe- 
ple  trust,      cial  trust, 
p.  585.         p.  597. 
I 

i  I. 

Jushabendi,     Jus  dispo- 
p.  585.  nendi,  p. 

595, 


Relief  against 
failure  of 
the  trus- 
tees, p.  693. 


I 
Rights  in  preven- 
tion of  a  breach 
of  trust,  p.  710. 


1.  Assignment,  p.  600. 

2.  Testamentary  disposition,  p.  615. 

3.  Seisin,  p.  617. 

4.  Dower  and  curtesy,  p.  621. 

5.  Feme  covert,  p.  627. 

6.  Judgments,  p.  646. 

7.  Extents,  p.  673. 

8.  Forfeiture,  p.  674. 

9.  Escheat,  p.  678. 
0.  Descent,  p.  680. 
.1.  Assets,  p.  681. 


I 
Remedies  in  event 
of  a  breach  of 
trust,  p.  724. 


Appointment  of  pro- 
per trustees,  p.  710. 


Compulsion  of  trus-     Injunction  against  breach 
tees  to  duty,  p.  718.         of  duty,  p.  723. 


Of  following 
the  specific 
trust  es- 
tate, p.  724. 


Of  attaching  property 
into  which  the 
trust  estate  has 
been  converted,  p. 
753. 


Remedy  against  the 
trustee  personally, 
p.  763. 


Remedies  in  breaches 
of  trust  by  trustees 
for  charities, p.  778. 


PART  IV. 

Pleading  and  Practice  in  reference  to  the  Law  of  Trusts  and  Trustees. 
\ 


Necessary  Order  and  man- 
parties  ner  of  suing 
to  suits,  and  defending, 
p.  841.  p.  856. 


I 

Distringas, 

p.  858. 


I 
Compulsory 
payment 
into  court, 
p.  864, 


I 

Receivership, 

p.  869. 


I 

Costs  of 
suit,  p. 
872. 


CONTENTS. 

Ml 

The  pages  referred  to  are  those  between  brackets  [  ]. 

INTRODUCTION. 


Origin  of  trusts,      .... 

Invention  of  the  subpoena, 

The  simple  trust  or  use, 

Confidence  in  the  person  of  the  trustee,     . 

Privity  of  estate  in  the  trustee. 

Privity  as  applied  to  the  estate  of  the  cestui  que  t 

The  special  trust,     .... 

Both  kinds  of  trusts  applicable  to  chattels. 

Statute  of  1  R.  3_,  c.  1,        . 

What  trusts  within  it,  . 

[Whether  a  trust  could  have  been  declared  on  an 

Statute  of  27  Hen.  8,  c.  10, 

[Mr.  Sanders's  doctrine,  that  before  this  statute  i 

declared  on  an  estate  in  tail,  or  for  life. 
What  trusts  within  the  statute, 
Introduction  of  the  modern  trust, 
Statutes  against  uses  not  applicable  to  trusts, 
Trusts  at  first  administered  on  principles  of  uses, 
Subsequent  improvements  of  the  system, 
In  respect  of  the  estate  in  the  trustee, 
In  respect  of  the  cestui  que  trust,   . 
Principles  governing  trusts  at  the  present  day, 


estate  for  life, 
use  could 


6,  note 


have 


been 
7,  note 


1 
1 

2 
2 
3 
3 
4 
4 
5 
5 

(1)] 

7 

(1)] 


9 

9 

10 

11 

13 


PART  I. 

DEFINITION,  DISTRIBUTION,  AND  CREATION  OF  TRUSTS. 


CHAPTER   I. 
DEFINITION  OF  A  TRUST. 

1.  A  trust  is  a  confidence, 

2.  Reposed  in  some  other, 

How  far  the  equitable  merges  in  the  legal  estate, 

3.  Not  issuing  out  of  the  land,  but  collateral  to  it, 

4.  Annexed  in  privity  to  the  estate, 

5.  Annexed  in  privity  to  the  person, 

6.  Cestui  que  trust  has  no  remedy  but  by  subpoena  in  Chancery, 


15 
15 
16 
18 
18 
19 
19 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


CHAPTER  II. 

CLASSIFICATION  OF  TRUSTS. 


The  simple  trust,     . 
The  special  trust,    .  _ 
The  latter  either  ministerial. 
Or  discretionary,     . 
Mislure  of  trust  and  power. 
Trusts  lawful  and  unlawful. 
Trusts  public  and  private. 


21 
21 
21 
21 
22 
22 
23 


CHAPTER    III. 
OF  THE  PARTIES  TO  THE  CREATION  OF  TRUSTS. 


Section  I. 


OF  THE   SETTLOK. 


Who  may  create  a  trust. 

The  Crown, 

Corporations, 

Kfeme  covert, 

As  to  property  settled  to  separate  use. 

Infants,        .... 

Lunatics,     .... 

Traitors,  felons,  and  outlaws. 

Bankrupts  and  Insolvents, 


24 
24 
25 

25 
2G 
26 
27 

28 
29 


Section  II. 


WHO  MAY  BE  A   TRUSTEE. 


The  Crown, 

A  Corporation,        . 

Bank  of  England, 

Feme  covert  ought  not  to  be  appointed, 

Nor  a  feme  sole, 

Nor  an  infant. 

Alien  may  be  a  trustee  of  chattels  personal. 

Person  domiciled  abroad  not  a  fit  trustee. 

Bankrupts  and  insolvents  not  absolutely  disqualified, 

Cestuis  que  trust  should  not  be  appointed  trustees, 

Proper  number  of  trustees,  .  .  . 


30 
31 
31 
34 
35 
35 
39 
40 
40 
40 
40 


Section  III. 

WHO   MAY   BE  CESTUI  QUE   TRUST. 

The  Crown  may  be,  .......       42 

A  corporation  not,  so  as  respects  lands,  without  license  from  the  Crown,         43 
Nor  alien,  of  lands,  .......       43 

Secus  as  to  proceeds  of  sale  of  land  directed  to  be  sold,     .  .  .43 


CONTENTS. 


xm 


CHAPTER    IV. 

WHAT  PROPERTY  MAY  BE  MADE  THE  SUBJECT  OF  A  TRUST. 


Copyholds  may  be,   . 

No  power  to  entail  equitable  interest  of  copyholds  where  no  custom  to  en 

tail  legal  interest, 
Equitable  interests  in  foreign  property, 
Equities  in  relation  to  West  Indian  property, 
Equities  in  respect  of  lands  in  Scotland,     . 
Demerara  property. 

Lands  in  Ireland,     .... 
Covenant  to  settle  lands  in  Demerara, 
Trusts  of  lands  abroad. 


45 

46 
46 
47 
48 
49 
50 
51 
53 


CHAPTER   V. 

OF  THE  FORMALITIES  REQUIRED  FOR  THE  CREATION  OF  A 

TRUST. 


Section  I. 

OF   TRUSTS  AT  COMMOX  LAW. 

Trusts  are  averable  like  uses,  .... 

Averment  must  not  contradict  the  instrument. 

Trusts  not  averable  where  deed  requisite  to  pass  the  legal  estate, 

Nor  upon  a  devise  even  at  Common  law,    . 

Nor  on  a  bequest  or  appointment  of  executor. 

Declaration  of  trust  by  or  to  the  kin, 

Section  II. 

OF  THE   STATUTE   OF   FRAUDS. 

I.  What  interests  within  the  Act, 
Copyholds  are  so,     . 

And  chattels  real,    .... 
Chattels  personal  not  so,      • 
Charitable  uses  within  the  Act, 
Whether  Crown  bound  by  the  statute. 
Land  in  the  Colonies, 
Whether  statute  must  be  pleaded,  . 

II.  What  formalities  required  by  the  statute, 
Trusts  to  be  proved  bij  not  declared  in  writing. 
Letter  or  recital  sufficient,  . 

Relation  to  subject-matter  and  nature  of  trust  must  be  clear, 
The  writing  must  be  signed,  .... 

Section  III. 
OF  the  statute  of  wills. 

Principle  of  rejecting  declarations  not  testamentary, 
Case  where  no  trust  appears  on  the  will  and  no  fraud  exists, 
Where  the  devisee  is  made  a  trustee  by  the  will,  and  the  testator  leaves  an 
informal  declaration  of  trust,   ...... 

Exceptions  to  the  rule,         ....... 

1.  General  charge  of  debts  and  legacies  under  the  old  law, 

2.  Fraud,  ......... 

Janu,iry,  1858. — 2 


56 
56 
57 
58 
58 
59 


60 
60 
61 
61 
61 
62 
62 
62 
62 
62 
63 
64 
64 


65 
68 

68 
69 
69 
70 


3^y  LEWIN    ON    THE    LAT7    OF    TRUSTS,    ETC. 

En<Tat^ement  to  execute  an  unlawful  trust, .  .  •  • 

Demise  to  tenants  in  common  with  unlawful  object,  may  be  good  as  to  one 

and  void  as  to  another,  .  •  •  '     .    xi, "       i 

Devise  not  void  merely  because  the  devisee  means  to  execute  the  unlaw 

ful  trust,  .  .  •  • 

Engagement  by  devisee  as  to  undefined  part, 
En^a^ement  to  execute  a  trust  and  none  declared, 
Devisee  a  trustee  on  the  face  of  the  will,  and  parol  undertaking  by  the 

devisee  to  perform  the  trust,     .  .  •,,,*.      Z      i     • 

In  the  case  of  a  le^-al  devise  with  a  subsequent jparoZ  declaration  tor  chan 

table  uses,  the  Statute  of  Mortmain  does  not  avoid  the  legal  devise, 

Section  IV. 

TBAlfSMtTTATIOX   OF  POSSESSION'. 

In  the  absence  of  valuable  consideration  question  is  not  whether  there  has 

been  transmutation,  but  whether  trust  has  been  perfectly  created, 

(I.)  Trusts  not  perfectly  created  where  settlor  contemplates  further  acts, 

(11.)  Where  the  settlor  declares  himself  a  trustee,  the  trust  is  perfectly 

created,     .  .  .  .  •  •.•..' 

(in.)  Where  a  stranger,  and  not  the  settlor  himself  a.  trustee,  distinctions 

necessary,  .....•• 

1.  If  subject-matter  a  legal  interest  capable  oi  legal  transfer, 
it  must  be  actually  veste^  in  the  trustee, 

2.  If  legal,  but  not  capable  of  legal  transfer,  much  difficulty, 

3.  If  subject-matter  an  equitable  interest,  an  assignment  to 
the  new  trustee  sufficient. 

Voluntary  settlement  of  real  estate  defeated  by  subsequent  sale, 
Voluntary  settlement  of  real  or  personal  estate  by  one  virtually  insolvent 

void  against  creditors. 
Specific  performance  of  agreement  under  seal  without  valuable  considera 

tion,      ..... 
Meritorious  consideration, 
Analogy  of  covenant  to  stand  seised. 
Analogy  from  supplying  surrender  of  copyholds. 
Analogy  of  aiding  defective  execution  of  powers, 
Agreement  for  meritorious  consideration  not  enforced  against  the  settlor. 
When  trust  once  perfectly  created,  legal  interest  revesting  in  the  settlor 

immaterial,       ........ 

Voluntary  trust  for  payment  of  debts,         ..... 


71 

73 

73 
73 

74 

75 

78 


81 
81 

82 

84 

84 
85 

89 

92 

93 

93 
95 
95 
96 
96 
97 

99 
101 


CHAPTER   VI. 

OF  THE  OBJECT  PROPOSED  BY  THE  TRUST. 

Section  I. 

OF   LAWFUL  TRUSTS. 

The  intention  in  general  followed,  •  .  .  .  . 

Object  not  attainable  by  any  limitation  of  the  legal  estate  may,  if  not 

against  the  policy  of  the  law,  be  attained  by  a  limitation  of  the 

equitable, 
A  fee  upon  a  fee  in  trusts. 
Contingent  remainders  in  trusts. 
Limitations  of  chattels  in  trusts, 
Endowments  of  chapels. 
Gift  to  the  "  poor  of  a  parish," 
Advowson  upon  trust  for  «  parishioners  and  inhabitants," 


103 


103 
103 
104 
104 
104 
105 
107 


CONTENTS. 


XV 


Mode  of  electing  a  clerk,     . 

Trusts  for  accumulation,     .  . 

Thellusson  Act, 

Points  resolved  upon  the  construction  of  it. 

To  whom  the  excess  shall  go, 

Exceptions  from  the  act, 

Settlement  to  separate  use  oifeme  covert^ 

The  interposition  of  an  express  trustee  not  necessary, 

What  words  will  create  a  settlement  to  the  separate  use, 

Clause  against  anticipation, 

Effect  before  marriage  of  clause  against  anticipation, 

EiFect  after  marriage  of  trust  for  separate  use, 

Effect  after  marriage  of  clause  against  anticipation, 

Effect  of  separate  use  in  case  of  second  marriage. 

Section  II. 


109 
110 
112 
113 
116 
119 
120 
121 
121 
123 
124 
124 
128 
130 


OF    UNLAWFUL    TRUSTS. 

Trusts  against  the  policy  of  the  law. 

Illegitimate  children. 

Trusts  of  real  estate  for  corporations, 

Trusts  of  real  estate  for  alien. 

Trusts  of  real  estate  for  charity. 

Restriction  on  alienation,    . 

Trusts  for  maintenance, 

Limitation  over  an  alienation. 

Director  to  purchase  presentation, 

Insurances  for  lives, 

Splitting  votes. 

Consequences  of  creating  a  trust  with  an  unlawful  purpose, 

Property  settled  with  an  unlawful  purpose  may  be  recovered  by  those 

claiming  under  settlor,  .... 

Or  by  the  settlor  himself,  where  there  is  no  positive  fraud, 


131 
131 
131 
132 
132 
132 
133 
135 
136 
136 
137 
137 

138 
139 


CHAPTER  VI I. 

IN  WHAT  LANGUAGE  A  TRUST  MAY  BE  DECLARED. 


Section  I. 

OF   DIRECT   OR    EXPRESS   DECLARATIONS    OF   TRUST. 

Technical  words  not  necessary,       -  .  .  . 

If  employed  must  be  taken  in  their  technical  sense. 

Lord  Hardwicke's  opinion  overruled, 

Whether  the  rule  in  Shelly's  case  applies  to  trusts. 

Distinction  between  trusts  executed  and  trusts  executory. 

Lord  Hardwicke's  opinion  in  Bagshaw  v.  Spencer, 

Executory  trusts  in  articles  and  wills  distinguished. 

Construction  of  "  heirs  of  the  body"  and  "  issue"  in  articles, 

Daughters  included  under  "  heirs  of  the  body"  and  "  issue," 

Articles  to  settle  chattels  on  trusts  of  real  estate. 

Limitation  over  on  "dying  under  21,"  or  "dying  under  21  without  issue,' 

Joint-tenancy  may  in  articles  be  construed  tenancy  in  common. 

Words  may  be  supplied  in  articles,  .... 

Construction  of  "heirs  of  the  body"  and  "issue"  in  executory  trusts  in 
wills,  ....... 

"  Heirs  of  the  body"  and  "  issue"  distinguished,     . 

Daughters  included  under  "  heirs  of  the  body"  or  "  issue"  in  wills 

Limitation  to  preserve  contingent  remainders,        .  .  . 


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155 

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LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


157 

157 


164 
166 


Settlement  of  gavelkind  lands,        .  '       ,     '    ,  •      '       v    '.  .-^^^ 

No  latitude  of  construction  where  testator  declares  his  own  limitations 

formally,           .             .             •             *      ^       i      i.  4.  i  -o 

Direction  in  wills  to  settle  chattels  on  trusts  of  real  estate,            ._  .     lo» 
Joint  tenancy  in  wills  in  what  cases  may  be  construed  tenancy  in  com-     ^^^ 

mon,                  .             .             •             •             •             •             •  '     1CJ. 

Insertion  of  powers  in  settlements,             .            .            •            •  .     id-a 
"Usual  powers,"      ...•••• 
"Proper  powers,"    ...•••• 

Section  II. 
of  implied  trusts. 

General  rule,  ...•••• 

Words  precatory,  recommendatory,  &c.,      .  .  .  • 

No  trust  where  there  is  uncertainty,  .... 

Either  of  the  objects,  ...••• 

Or  of  the  subject-matter,     .  .  .  .  •  ' 

The  implied  trust  may  be  negatived  by  indicia  of  a  contrary  intention, 

Not  so  restrictive  as  a  proper  trust,  .... 

Court  at  present  leans  against  implying  trusts, 

Surplus  does  not  result,       .  .  .  •       ^      • 

Implied  trust  under  agreement  for  valuable  consideration, 

Or  under  a  contract  for  sale,  ..... 


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CHAPTER   VIII. 

OF  RESULTING  TRUSTS. 

Section  I. 

WHERE  THERE    IS   A  DISPOSITION  OF  THE   LEGAL  INTEREST  AND   NOT   OF   THE 

EQUITABLE. 


General  rule,  ....... 

Arise  either  upon  presumption  or  expression  of  intention, 
In  what  cases  a  resulting  trust  arises  upon  presumption,  . 
Distinction  between  devise  upon  a  partial  trust  and  beneficial  devise  sub 

ject  to  a  charge,  ...... 

Recognition  of  the  devisee's  relationship  evidence  of  beneficial  devise. 
The  words  "trust"  and  "trustee"  not  conclusive  that  mere  trust  was  in 

tended,  ....... 

Heir  not  excluded  from  resulting  trust  on  bare  conjecture, 
A  trust  resulting  by  presumption  may  be  rebutted  by  parol  evidence. 
In  what  cases  a  resulting  trust  arises  from  intention  expressed,     . 
Parol  evidence  not  admissible  to  rebut  latter  kind  of  trust. 
General  observations  upon  resulting  trusts, 

1.  Money  arising  from  sale  of  real  estate  results  to  the  testator's  heir. 
If  purposes  of  the  trust  only  partially  fail,  the  residue  results  to  the  heir 

as  personal  estate,        ....... 

If  the  purposes  of  the  trust  wholly  fail,  the  entirety  results  to  the  heir  as 
real  estate,        .  •  .  ^  .  .  .  . 

2.  Money  bequeathed  to  be  laid  out  on  land  results  to  the  testator's  next 

of  kin,  •  •  .  .  . 

3.  Cases  of  primary  disposition  of  the  whole  property  to  A.  subject  to  a 

charge  in  favour  of  B., 
Difference  between  exception  from  a  devise. 
And  charge  upon  a  devise. 
Possible  distinction  in  the  case  of  a  legacy  to  charity. 


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180 

180 
181 
181 
181 
182 
182 
182 

184 

184 

187 

189 
191 
192 
192 


Results  of  the  cases,        .  .  .  ,  ,  !         193   194 


CONTENTS. 


XVll 


4.  The  resulting  Interest  may  be  given  away  from  the  heir  or  next  of  kin 

by  express  devise  or  bequest,  .  .  .  •  • 

The  word  "  residue"  could  not,  before  the  late  Wills  Act,  pass  resulting 

interest  in  land,  ....••• 

Gift  of  testator's  "  personal  estate"  will  not  pass  money  arising  from  sale 

of  real  estate,  .  •  •       _      •  • 

Such  an  intention  may  be  collected  from  the  will,  .  . 

In  what  case  a  lapsed  legacy  out  of  proceeds  of  real  estate  will  pass  by 

gift  of  the  residuary  personal  estate,  .  •  _  • 

Resulting  interests  of  personal  estate  pass  by  gift  of  the_  residue,   . 

5.  Law  of  resulting  trusts,  as  applicable  to  charitable  gifts,  #       _     • 
Where  objects  do  not  exhaust  the  estate,  the  surplus,  instead  of  resulting, 

will  be  applied  to  a  like  charitable  object,        .  .  .      _       • 

So  if  the  value  of  the  property  increase  beyond  the  wants  of  the  charity,  . 
An  interest  will  result  even  in  charitable  gifts,  where  intention  appears 

that  the  charity  should  take  only  to  limited  amount, 
Exceptions  in  charity  founded  on  precedent  against  principle. 


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196 

196 

197 
198 

198 
198 

199 
199 


Section  II. 


RESULTING  TRUSTS  UPON  PURCHASES  IN  THE  NAMES  OF  THIRD  PERSONS. 

I.  Of  purchases  in  the  names  of  strangers, 
Principle  applicable  to  personalty, 
Joint  purchases  in  the  name  of  a  third  person, 
Joint  purchases  in  the  joint  names  of  the  purchasers. 
Mortgage  to  two  on  a  joint  advance, 
Copyhold  grant  to  A.  for  life,  and  fine  paid  by  B., 
Purchase  of  a  ship,  .    _         . 
Purchase  contrary  to  the  Papistry  acts,       .  . 
Purchase  in  order  to  confer  a  vote, 
Parol  evidence,        ..... 
Purchase  by  agent,              .             .            • 
Proof  of  trust  against  defendant's  denial,    . 
Of  parol  evidence  after  death  of  the  nominal  purchaser, 
Of  following  trust  money  into  land. 
Resulting  trust  may  be  rebutted  by  parol,  . 
Subsequent  declarations,     .... 
Effect  of  time,           ..... 

II.  Of  purchases  in  the  names  of  children, 
Advancement,  .  .  • 
The  sonship  a  circumstance  of  evidence,     . 
Distinctions : — 

1.  Where  child  an  infant, 

2.  Where  interest  is  reversionary, 

3.  Purchase  in  joint  names  of  father  and  son,     . 

4.  Purchase  of  copyholds  granted  for  lives  successive, 

5.  Where  child  already  provided  for. 
Where  child  is  adult, 

6.  Where  the  father  holds  possession  and  child  an  infant, 

7.  The  same  when  son  adult, 
Rebutter  of  the  presumption. 
Parol  declarations. 
Evidence  on  the  part  of  the  child. 
Illegitimate  children. 
Daughters,  wife,  grandchild,  nephew. 
Purchase-money  not  paid,  a  debt  from  parent. 


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202 
203 
203 
203 
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207 
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208 

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SVlll 


LEWIN    ON    THE    LAW    OF    TKUSTS,    ETC. 


CHAPTER  IX. 
OF  CONSTRUCTIVE  TRUSTS. 

Renewal  of  leases,   .  •  • 

Rule  applicable  to  tenant  for  life,    . 

To  yearly  tenant,     . 

Tenant  at  will  or  at  sufferance, 

Agent  of  trustee  cannot  renew  for  his  own  benefit, 

Trustee  may  not  sell  right  of  renewal, 

Trustee's  lien  for  expenses  of  renewal, 

Expenses  of  tenant  for  life, 

Contribution  by  annuitants. 

Terms  of  assignment  by  the  trustee, 

Accounting  for  mesne  rents  and  profits, 

Remedies  against  purchasers,  lessees,  &c., 

Limitation  of  time. 

Case  of  trustee  purchasing  the  reversion,  .    ,.  ., 

No  tenant  right  where  corporation  has  sold  to  an  individual, 

Factor,  agent,  &c.,  a  constructive  trustee. 

Equitable  waste,      .  .  .  • 

Fraud  in  Attorney, 

Agent  of  trustee  not  a  constructive  trustee, 

Constructive  trust  as  to  title  deeds, 

Constructive  trusts  from  notice. 

Statute  of  frauds  as  regards  trusts  by  operation  of  law, 


.  217 

.  218 

.  219 

.  219 

.  220 

.  220 

.  222 

.  222 

.  223 

.  223 

.  224 

.  224 

.  224 

.  225 

.  225 

.  225 

.  225 

.  226 

.  226 

.  227 

.  228 

.  228 


PART  II. 

ESTATE  AND  OFFICE  OF  THE  TRUSTEE. 


CHAPTER  X. 
OF  DISCLAIMER  AND  ACCEPTANCE  OF  THE  TRUST. 

I.  Of  disclaimer,  .......     232 

No  one  compellable  to  be  trustee,  .  .  .  .  .232 

Heir  of  a  trustee,     ........     232 

Disclaimer  should  be  by  deed,        ......     233 

And  by  way  of  disclaimer  and  not  of  conveyance,  .  .  .233 

Whether  devise  of  trust  estates  can  be  disclaimed  in  part,  .  .     234 

Disclaimer  by  answer  in  Chancery,  .....     234 

May  be  evidenced  by  a  person's  conduct,    .....     235 

Trustee,  after  disclaimer,  may  act  as  agent  to  the  trustees,  .  .     235 

What  disclaimer  necessary  for  divesting  the  legal  estate,  .  .  .     235 

Disclaimer  of  uses,  .......     236 

Disclaimer  of  chattels,         .......     236 

Disclaimer  by /emecowerf,  .......     236 

Effect  of  disclaimer  as  regards  the  co-trustees,       .  .  .  .237 

II.  Of  acceptance  of  the  trust,    ......     237 

Where  a  trustee  agrees  by  deed  to  execute  the  trust,  a  breach  of  trnst 

creates  a  specialty  debt,  ......     238 

What  acts  will  be  construed  an  acceptance,  .  .  .  .239 


CONTENTS. 


Whether  taking  out  probate  is  acting,         .  .  •  •  • 

Vokintary  interference  with  the  assets,  whether  with  or  without  taking  out 
probate,  is  acting,         ....••• 
Except  the  interference  was  plainly  on  some  other  ground, 
Trustee  may  not  act  ambiguously,  ..... 

Executor  becoming  a  trustee,  ..•••• 

Trustee  on  acceptance  must  inform  himself  of  the  state  of  the  trust, 
Trustee  by  mistake,  ....••• 


23'J 

241 

242 
242 
243 
244 
244 


CHAPTER   XL 
OF  THE  LEGAL  ESTATE  IN  THE  TRUSTEE. 

Section  L 
of  vesting  the  legal  estate  in  the  trustee. 

What  words  will  vest  the  legal  estate  in  the  trustee, 

I.  Under  the  statute  of  uses, 
Special  trusts  not  within  the  statute, 
Trust  to  permit  a  person  to  receive  the  rent. 
Charge  of  debts,      .  .  •  • 
To  permit  him  to  receive  or  to  pay  him,     . 

II.  What  quantity  of  estate  will  be  vested  in  the  trustee. 

The  trustee  will,  if  possible,  take  an  estate  sufficient  for  the  execution  of 
the  trust,       ....•••• 
Implied  devise  in  the  word  "  trustee,"         ..... 
Trust  to  sell  confers  a  fee,  ....•• 

Limitation  to  two  trustees  and  heir  of  survivor,      .... 
The  estate  will  not  be  greater  than  is  required  for  the  purposes  of  the  trust. 
Uses  limited  in  remainder  upon  the  partial  trusts  will  be  executed, 
Harton  v.  Harton,  ...••••• 
Hawker  v.  Hawker,  ...•••• 

Warter  v.  Hutchinson,        ...♦••• 
Late  Will  Act,         ....•••• 

Section  II. 

THE  PROPERTIES  AND  DEVOLUTION  OP  THE  LEGAL  ESTATE. 

I.  At  common  law,  ....•' 

Freehold  estate  in  the  trustee  is  liable  to  curtesy,  dower,  &c.. 
Personal  estate  liable  to  forefeiture  for  the  ofifence  of  the  trustee 
Whether  term  in  a  trustee  requires  a  prerogative  probate. 
May  be  taken  in  execution  for  debt  of  the  trustee,  semble, 
Assets  a  species  of  trust  property  at  law,    . 
Legal  estate  may  be  conveyed  or  devised  by  the  trustee, 
In  what  cases  it  passes  by  a  general  devise, 
Charge  of  debts,  &c.,  will  exclude  the  trust  estate, 
What  expressions  will  or  will  not  do  so,     .        _    . 
Distinction  as  to  legal  estate  in  mortgages  passing, 
Poiver  of  the  trustee  in  equity  to  devise  the  trust  estate, 
Whether  a  devisee  can  execute  the  trust,   .  .  _ 

Estate  after  contract  for  sale  passes  by  a  general  devise,  where 

trust  estate  would  not, 
Legal  estate  is  subject  to  legal  burthens,    . 
Trustee,  the  person  to  bring  an  action  at  law. 
To  appoint  steward  of  a  manor  or  present  to  a  church. 
To  prove  in  bankruptcy,      .  .  .  ■ 

Of  voting  for  coroners,  (See  note  p.  593,) 


24G 
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247 
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249 

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253 
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256 
,257 
259 


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XX 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


For  members  of  Parliament,  ...••• 

Trustee  liable  to  rates,        ...■••• 
Trustee  pays  fines  of  copyholds,      ....•• 

Mav  be  bankrupt,  if  he  trade  as  trustee,     .  .  '  > 

11.  Of  the  legal  estate  in  the  trustee  as  regards  the  construction  of  cer- 
tain statutes,    ....•••• 

Of  the  Bankruptcy  Act,      .  .  .  .  ;  •  •« 

The  legal  estate,  in  the  case  of  a  bare  trust,  does  not  vest  in  the  assignees, 

Nor  the  property  into  which  the  trust  estate  may  have  been  converted,     . 

In  whose  name  actions  for  recovery  of  the  trust  estate  from  the  assignees 

must  be  brought,  ....... 

If  trust  estate  cannot  be  traced,  the  representative  of  the  trust  must  prove 
for  the  value,  .  .  .  .  ._  •   _         . 

When  the  bankrupt  has  an  interest,  the  legal  estate  vests  in  the  assignees 
as  a  general  rule,         ....... 

Effect  of  the  clause  relating  to  property  left  in  possession  of  the  bank- 
rupt,    ......... 

Of  the  Insolvent  Act,  ....... 

Of  judgments  against  the  trustee,  ...... 


270 
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272 

273 
273 

274 
274 

275 

276 

276 

277 
278 
278 


Section  III. 


WHAT   PERSONS   TAKING   THE   LEGAL   ESTATE   WILL   BE   BOUND  BY  THE    TRUST. 


Heir  and  executor,  . 

Devisee,       .... 

Assignees,    .... 
Dowress,  tenant  by  the  curtesy,  creditors,  &c., 
Forfeiture,    .... 
Escheat,       .... 
Escheat  in  copyholds, 
In  customary  freeholds, 
Equity  of  redemption. 
Escheat  and  Forfeiture  Act, 
Trustee  Act,  1850,  . 
Outlawi-y  of  the  trustee, 
Bankruptcy  of  the  trustee,  . 
Disseisor  not  bound  by  the  trust,     . 


279 
279 
279 

279 
280 
280 
283 
283 
284 
285 
286 
287 
287 
287 


CHAPTER    XII. 
GENERAL  PROPERTIES  OF  THE  OFFICE  OF  TRUSTEE. 


I.  A  trustee  having  accepted  the  oflBce  cannot  renounce 
So  an  executor,        .... 
Though  he  may  not  have  proved,    . 
^  II.  Trustee  cannot  delegate  the  office,     . 
Unless  the  settlor  so  directed. 
Trustee  acting  as  agent, 

Delegation  allowed  where  moral  necessity  for  it. 
Trustee  not  required  to  take  security. 
How  trust  money  to  be  transmitted, 
Payments  at  bank  must  be  to  account  of  trust. 
Rule  at  law  as  to  liability  of  executors,       . 
Delegation  of  discretionary  trust  void. 
Even  to  a  co-executor  or  co-trustee, 
A  power  does  not  pass  with  the  estate,        '. 
Delegation  distinguished  from  appointment  of  an  attorney 

111    Lo-trustees  exercise  a  joint  office,    . 
In  public  trusts  the  majority  binds. 


it, 


289 
289 
290 
290 
291 
292 
292 
295 
295 
296 
296 
296 
297 
297 
297 
297 
298 


CONTEXTS.  XXI 


299 


IV.  On  death  of  one  trustee  the  office  survives, . 
Though  there  be  a  power  of  appointment  of  new  trustees, .  .  '  ^ao 

V.  A  trustee  not  liable  for  the  acts  of  his  co-trustee,  .  .  *  onA 
Not  responsible  for  having  joined  in  receipts,  .  .  _  •  •  304 
Onus  probandi  lies  on  each  trustee  to  prove  he  did  not  receive  the  money,  d05 
Is  liable  for  joint  receipts  if  money  be  improperly  raised,  .  .  '  q2« 
Must  not  let  it  lie  in  the  hands  of  a  co-trustee,  .  .  •  *  o?  a 
Executor  liable  for  joining  in  receipts,  .  .  .  •  "  qTa 
Lord  Northington's  doctrine  in  Westley  v.  Clark,  .  .  .  .  diU 
Lord  Harcourt's  opinion  that  an  executor  is  liable  to  creditors,  but  not  to 

legatees,  .  .  •  •  '...,'  '  *  ?i  i 

Executors  liable  for  joining  in  drawing  or  indorsmg  bills, .  .  J,. 

Not  liable  where  joining  was  as  necessary  as  in  case  of  trustees,  .  .  314 

Must  see  that  the  act  is  in  accordance  with  the  trust,         .  .  '  qT « 

Must  not  leave  the  money  in  the  hands  of  the  co-executor,  .  *  oi  a 

Not  answerable  for  so  much  as  was  well  applied,    .  .  .  '  V\c 

Co-administrators  on  same  footing  as  co-executors,  .  •  •  31b 

Liability  of  trustee  for  concealment  of  breach  of  trust  by  a  co-trustee,       .  317 

Indemnity  clauses,  .  .  •  •  •  •  •  *  qiq 

VI.  Trustee  can  derive  no  advantage  from  the  trust,  .  .  .318 
Not  entitled  to  the  game,  ...••••  318 
Or  to  present  to  an  advowson,  ....••  318 
Cannot  buy  up  debts,  .  •  •  •  •  •  *  o! q 
How  far  mortgagee  regarded  as  a  trustee,  .  .  •  •  '  o! q 
Trustee  trading  with  the  trust  estate  must  account  for  the  profits,             .  319 

Must  not  be  receiver  with  a  salary,  .  .  •  ex.-  x.  •' 
Trustee  who  is  a  factor,  &c.,  cannot  make  a  profit  in  the  way  of  his  busi- 
ness from  the  trust,  ...••••  320 
Case  of  solicitor  trustee,  .  .  >  •  •  •  •  ^j^ 
Attorneys,  guardians,  &c.,  in  the  same  position  as  trustees,  .  •  3Z0 
Trustee  may  derive  an  accidental  advantage,  .  •  •  •  321 
Purchaser  dying  without  heir  after  payment  of  purchase-money,  and  before 

conveyance,      .  .  •  •  •  •  •  '  099 

Of  mortgagor  dying  without  heirs,  .....  ^^^ 

0?  cestui  que  trust  aXiami&^iov  Monj,        .  .  .  .  •  323 

Whether  on  creation  of  trust  in  fee  there  can  be  any  reverter  to  the  creator 

of  the  trust,      .  .  .  •     .       •    .         •  •  •  „^ 

Trustee  cannot  enforce  his  beneficial  interest  in  equity,     .  .  .  ^^^ 

May  obtain  possession  at  law,  .  .  .  •  •  •  ^^^ 

On  death  of  cestui  que  trust  of  a  chattel  without  next  of  kin,  the  Crown 

entitled,  ......••  324 


CHAPTER   XIII. 

DUTIES  OF  TRUSTEES  OF  CHATTELS  PERSONAL. 

Section  I. 

OF  REDUCTION  INTO  POSSESSION. 

There  must  be  no  delay  in  getting  in  choses  en  action,       .  •  _  '090 

Executor  must  not  allow  assets  to  remain  out  upon  personal  security,       .     328 
May  upon  mortgage,  ...••••     ^^" 

Section  II. 

AS  TO  THE  SAFE  CUSTODY  OF  THE  CHATTEL. 

Trustees  must  exercise  same  care  as  a  man  would  for  himself,      .  •     332 

Robbery  of  the  trust  property,         ...•••     332 


332 
332 

332 
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336 
337 


^xii  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

Insurance  of  leaseholds,      .  •     _        •  .', ,    t,     i 

Money  may  be  deposited  temporarily  in  a  responsible  banU, 

The  deposit  must  be  to  the  account  of  the  trust,     . 

Must  not  be  put  out  of  the  control  of  the  trustee,   . 

Or  under  the  sole  control  of  the  co-trustee,  .  _  • 

Responsible  for  failure  of  bank  if  he  ought  to  have  invested, 

Mixing  trust  fund  with  private  property,    . 

Section  III. 

OF  INVESTMENT. 

As  to  the  proper  investment  of  trust  money,           .            •            •            *     0-7 
Trustee  may  not  lend  on  personal  security,             .             •             •             '000 
Unless  expressly  authorised,           .            •            •            •            •            •     ^^° 
A  power  to  lend  on  personal  security  does  not  extend  to  an  accommoda- 
tion,   m 

Power  to  lend  with  consent,  ...•••     ^*^ 

Investment  in  trade,  ...••••     340 

Loan  by  way  of  annuity,      .  .  •  •  •.  T    i         '     oTi 

On  personal  security  where  it  should  have  been  real  security  or  stock,      .     d4i 
Trustee  may  not  invest  on  stock  of  any  private  company,  .  .341 

Exchequer  bills  are  government  securities,  ....     342 

Whether  he  may  invest  on  mortgage,  .....     342 

Mortgage  to  replace  stock  and  pay  interim  dividends,        .  .  .     344 

Points  to  be  attended  to  in  loans  on  moitgage,      ....     345 

Value  of  the  security,  .  .  •  •  •  •  •     ^^^ 

In  loan  of  trust  money  the  trust  kept  out  of  sight,  .  .  .     346 

When  authorized  to  lend  on  real  estates  in  England,  may  now  lend  on 

estates  in  Ireland, 
Investment  on  leaseholds  for  lives. 
On  leaseholds  for  years. 
Purchase  of  house  property. 
Copyholds  for  lives. 
Second  mortgage,    . 
Mixing  trust  money  in  mortgage, 
Mortgage  of  a  reversion, 
Loan  upon  a  judgment, 
Safest  investment  (where  no  power)  in  3  per  cent.  Bank  Annuities,  .     351 

Other  government  securities,  ......     352 

Where  successive  estates  limited,  government  securities  other  than  the  3 

per  cent,  must  be  converted  into  that  fund,  .  .  .     352 

Tenant  for  life  must  refund  what  surplus  interest  he  has  received,  .     353 

No  conversion  directed  where  stock  is  devised  specifically,  .  .     354 

Investment  in  3  per  cent,  reduced,  ordered  by  court  under  special  circum- 
stances, ........     354 

Mortgages  need  not  be  called  in,     .  .  .  .  .  .     354 

Assets  in  India  may  be  invested  on  the  securities  of  the  company,  though 

yielding  10  or  12  per  cent.,  .....     355 

Trustees  neglecting  direction  to  purchase  stock  answerable  for  the  amount 

that  might  have  been  purchased,  .....     355 

Trustees  selling  out  improperly  liable  to  cestui  que  trv^t,  at  his  option,  for 

specific  stock  or  proceeds,  with  interest  at  5  per  cent.,  .  .     356 

Trustees  must  not  put  the  fund  under  the  control  of  one  of  themselves 

singly,  ........     357 

Section  IV. 

LIABILITY  OF  TRUSTEES  TO  PAYMENT  OF  INTEREST. 

Trustees  charged  with  interest  for  improper  retainer,         .  .  .     358 

So  executors,  ........    358 


347 
349 
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349 
350 
350 
350 
350 
350 


CONTENTS. 


SXlll 


And  assignees  of  bankrupts,  &c.,    . 

Delay  may  be  explained,      .... 

No  excuse  that  they  did  not  use  the  money. 

Formerly  an  executor  was  considered  entitled  to  use  the  assets, 

At  least  where  solvent,         .... 

Unless  assets  specifically  bequeathed, 

Rule  general  now  that  executor  must  account  for  assets,^ 

Where  trust  money  used  in  trade  cestui  que  trust  may  claim  either 

or  the  actual  profit,  .  .  . 

General  rate  of  interest  4  per  cent.. 
Under  what  circumstances  compound  interest  charged, 
Trustee  charged  5  per  cent,  where  gross  misconduct. 
Whether  simple  or  compound  interest  chargeable  where  moneys 

trade,  ..... 

Where  accumulation  directed,  compound  interest. 
Time  from  which  interest  charged. 
Interest  on  money  lost  that  never  came  to  hand,    . 


interest 


used  in 


.S59 
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360 
360 
360 
360 
3G0 

361 
361 
361 
362 

363 
364 
364 
364 


Section  V. 


OF  THE  DISTRIBUTION  OF  THE  TRUST  FUND. 

Mistake  Is  at  the  risk  of  the  trustee,  .... 

Advice  of  counsel,    ...•••• 

Suit,  .  .  .  .  .  •  •      .       • 

Cestui  que  trust  a  feme  covert  whose  husband  is  bankrupt  or  insolvent, 

Equity  to  settlement,  .  .  •  •  _  • 

Collusive  reduction  into  possession  o^ feme's  chose  en  action, 

Authority  from  cestui  que  trust  to  receive, 

Genuineness  of  the  authority. 

Payment  to  an  infant, 

Payment  to  a  partner, 

Release, 

Act  for  the  relief  of  trustees, 


365 
366 
367 
369 
370 
370 
372 
372 
373 
373 
373 
376 


CHAPTEK  XIV. 

DUTIES  OF  TRUSTEES  OF  RENEWABLE  LEASEHOLDS. 

I,  In  what  cases  the  obligation  to  renew  is  imposed,      .  .  . 
No  such  obligation  from  mere  circumstance  of  successive  estates  limited. 
Mere  interposition  of  trustee  will  not  create  the  obligation, 
Nor  the  circumstance  that  the  settlement  was  on  marriage. 
If  renewable  leaseholds  be  articled  to  be  settled,  the  court  inserts  a  clause 

for  renewal,  .  .  .  .  • 

Direction  to  renew  may  be  in  the  form  of  a  power, 

II.  In  what  manner  the  fines  upon  renewals  are  to  be  levied. 
Where  the  fines  are  directed  to  be  raised  from  "  rents  and  profits,"  and  the 

leaseholds  are  for  years,  .... 

Fines  to  be  levied  out  of  rents  and  profits  or  by  mortgage. 
Where  the  leaseholds  are  for  lives  or  years  determinable  on  lives, 
Mode  lately  adopted  by  the  court  for  raising  the  fines, 
Of  raising  fines  by  insurance,  .... 

Power  of  charging  freeholds  for  raising  the  fines,   . 
Who  shall  have  the  rents  applicable  to  fines  where  no  renewal  can  be  ob- 
tained, .  .  .  .  .       _     • 
Mode  of  redress  where  rents  applicable  to  fines  not  levied. 
Case  of  direction  to  renew  and  fund  for  raising  the  fines  not  specified, 
Mortgage  seldom  feasible,  ...... 


383 
383 

384 
385 

385 
386 
386 

386 
387 
388 
390 
391 
391 

392 
392 
393 
393 


XXIV 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


^Sf:?::r!^^^'^s  between- tenantVor  life 'and  remainder.an, 
Canons  laid  down  in  Nightingale  v.LawsoD,  •  ; 

How  rale  of  contribution  to  be  applied  to  leaseholds  for  lives, 
Where  no  trustee  interposed  tenant  for  life  is  trustee,         . 
Receiver  appointed  where  tenant  for  life  threatens  not  to  renew, 
No  suit  for  compensation  until  after  death  of  tenant  for  hfe. 
Admission  fines  to  copyholds,         .  .  •  • 


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396 
398 
402 
402 
402 
402 


CHAPTER  XV. 

DUTIES  OF  TRUSTEES  TO  PRESERVE  CONTINGENT 
REMAINDERS. 

Forms  in  which  settlements  containing  such  a  trust  are  drawn,     . 
What  duties  imposed  in  each  form,  ',  '  '  * 

I    Duties  until  the  eldest  son  has  attained  twenty-one,    . 
Imperative  upon  the  trustees  not  to  destroy  the  contingent  remainders, 
Though  the  settlement  was  voluntary,         .... 
Remedy  where  the  remainders  have  been  destroyed,        _  . 
Collateral  heir  of  the  husband  not  entitled  to  compensation. 
Heir  apparent  not  entitled  during  the  lifetime  of  the  father, 
Court  has  no  jurisdiction  to  destroy  the  .-emainders. 
Exceptions  in  Piatt  v.  Sprigg  and  Bassett  v.  Clapham,      . 

II.  Duties  after  the  eldest  son  has  attained  twenty-one. 
Destruction  of  remainders  matter  of  discretion, 
Proper,  where  object  is  to  resettle  estate  on  marriage  of  eldest  son. 
Improper,  where  no  purpose,  or  none  that  is  reasonable,    . 
Of  distinction  between  settlements  and  wills. 
Effect  of  the  Fines  and  Recoveries  Act,      .  .  . 

Contingent  remainders  no  longer  destructible  by  forfeiture,  surrender, 
merger,  ....••• 


.  404 

.  404 

.  405 

.  405 

.  406 

.  406 

.  406 

.  406 

.  407 
407,  408 

.  408 

.  408 

.  409 

.  409 

.  410 

.  411 

413 


CHAPTER   XVI. 

DUTIES  OF  TRUSTEES  FOR  SALE. 


Section  I. 


GENERAL  DUTIES  OF  TRUSTEES  FOR  SALE. 


May  sell  without  application  to  the  Court, 

Must  consult  the  advantage  of  the  cesiuis  que  trust, 

Each  trustee  responsible,     ..... 

Trustees  allowed  reasonable  time  to  sell,    . 

May  not  lease,  ...... 

Nor,  as  a  general  rule,  mortgage,    .... 

Trust  to  mortgage  -will  not  authorize  a  sale. 

Nor  a  power  of  sale  a  partition,       .... 

Sale  under  usual  power  in  settlement,         .  .  , 

Special  cases  in  powers  of  sale,       .... 

Raising  portions,      ...... 

Should  ascertain  value  of  the  estate. 

And  whether  good  title  can  be  made. 

Where  the  estate  is  settled,  may  not  sell  the  timber  exclusively, 

May  sell  by  auction  or  private  contract. 

May  employ  agents,  ..... 

If  sale  by  auction,  proper  advertisements  must  be  given,  . 


414 
414 
415 
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416 
416 
417 
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417 
419 
420 
421 
421 
421 
422 
422 
422 


CONTENTS. 


XXV 


Of  conditions  of  sale, 

Of  selling  in  lots,     . 

Of  buying  in. 

Of  auction  duty, 

Of  letting  into  possession,    . 

Of  the  conveyance, 

Of  covenants, 

Attested  copies  and  covanant  for  production. 

Sale  of  leaseholds,   .... 

Of  sale  by  mortgagee  under  a  power. 

As  to  cestuis  que  trust  joining  in  the  conveyance, 

Trustees  bound  to  answer  inquiries, 

Custody  of  vouchers, 

Land  discharged  when  money  raised. 


423 
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424 
425 
425 
426 
427 
427 
427 
428 
428 


Section  II. 

POWER   OF   TRUSTEES   FOR   SALE   TO   SIGN   DISCHARGES. 

Trust  for  sale  for  payment  of  debts,  ..... 

Sale  of  more  than  the  purpose  requires,      ..... 

Sale  of  estate  charged  with  legacies  not  yet  payable, 

Principle  of  seeing  to  the  application  of  purchase-money. 

Trust  to  sell  implies  power  in  some  one  to  sign  discharges. 

Case  of  infant  cesttds  que  trust,       ...... 

Special  trust  declared  of  the  proceeds  of  the  sale. 

Power  to  sell  and  invest  in  new  purchase,  .... 

Trust  to  lay  out  and  invest,  ...... 

Trust  to  pay  debts,  ....••• 

Trust  to  pay  scheduled  debts  or  legacies,    .  .  .  • 

Power  to  sign  receipts,  a  question  of  intention  at  date  of  the  instrument  of 

trust,     .....♦••• 
Forbes  v.  Peacock,  ....••• 

Cases  upon  power  to  give  receipts  where  a  testator  merely  charges  an 

estate  with  payment  of  debts,  ..... 

1.  Devise  to  trustees  subject  to  a  charge  of  debts, 

2.  Devise  to  a  person  beneficially  subject  to  a  charge  of  debts, 

3.  Charge  of  debts  and  no  devise,  .  .  •  •  • 

4.  Charge  of  debts  and  a  subsequent  devise  to  a  devisee  who  dies  in  the 
testator's  lifetime,         ....••• 

5.  Charge  of  debts  and  the  estate  subsequently  devised  upon  various 
limitations,        .  .  .  •  •    _         • 

General  consideration  of  trustees'  power  to  give  receipts  resumed, 

Receipts  of  person  to  whom  the  trust  has  been  delegated^ 

Receipts  of  trustees  appointed  by  the  court, 

Receipts  after  breach  of  trust. 

Suggestions,  where  no  power  of  signing  receipts, 

New  principle  suggested,     . 

Cestui  que  trust  abroad, 

Receipts  of  executors, 

Notice  of  the  will,    . 

Fraud, 

Sale  for  nominal  consideration, 

Sale  by  executor  for  payment  of  his  own  debt, 

For  other  private  purposes. 

Sale  of  specific  chattel,  and  notice  that  debts  have  been  paid. 

Payment  to  executor  who  will  probably  misapply  the  money, 

Payment  after  long  interval  from  testator's  death. 

Sale  by  executor's  banker,  .  .  •  • 

Who  may  impeach  the  sale,  .  .  •  • 

Effect  of  time,  ....•• 


428 
429 
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435 

436 
437 

440 
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443 

444 

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459 


XXVI 


LEWIN    ON    THE    LAW    OF    TKUSTS,    ETC. 


Section  III. 

OF  PURCHASES  BY  THE  TRUSTEES  OF  THE  TRUST  PROPERTY. 

Principle  of  the  rule  that  trustees  cannot  purchase, 

Lord  Rosslyn's  opinion,       •.•,,* 

Trustees  cannot  buy  as  agents  for  otners,  . 

Or  employ  an  agent  to  buy  for  themselves. 

Cannot  lease  to  one  of  themselves, .  •  •  • 

Trustee  who  has  disclaimed,  .*        ,    '  . 

Trustees  may  purchase  from  cestui  que  trust,         •    „       '     ,.      ,     . 

But  the  rSon  of  trustee  and  cestue  que  trust  mus  first  be  dissolved       . 

fnstances  where  purchases  by  trustees  from  cestm  que  trust  have  been 

Saidfharcei^i«'5  que  trust  'solicitor  must  be  specially  authorised  to  deal 
with  the  trustee, 

Where  creditors,  all  must  join,         .  • 

Court  will  not  authorise  trustee  to  bid, 

Case  of  infant  cestuis  que  trust,       .  • 

Rule  applicable  to  executors,  assignees,  &c.,  . 

Of  the  terms  upon  which  the  sale  will  be  set  aside. 

Cestui  que  trust  may  recover  specific  estate,  . 

Allowances  will  be  made  for  improvements  and  repairs,     . 

Exception  where  actual  fraud,         .  \       .    '  e        ^' 

Case  of  purchase-money  paid  into  court  ind  a  rise  ot  stock. 

Immediate  conveyance  ordered,      .... 

Titles  of  lessees  not  prejudiced,       .... 
Cestui  que  trust  may  pray  a  resale. 

Estate  will  be  put  up  at  the  purchase-money,         .  . 

Expense  of  repairs  and  improvements  will  be  added  to  the  purchase-money, 

As  to  resale  in  lots,  ..... 

Any  creditor  may  insist  on  a  resale,  .  .  .         ^ 

Case  of  subsequent  sale  by  the  trustee  to  purchaser  without  notice 
Case  of  resale  of  shares  in  mines,   .... 

Of  the  costs  of  suit,  .  .  .    _         • 

Within  what  time  cestui  que  trust  may  set  aside  the  sale,  . 
Laches  not  imputed  to  femes  covert  and  infants,    . 
Not  to  creditors  in  same  degree  as  to  individuals,  ._ 
No  laches  where  cestui  que  trust  was  ignorant  of  his  right, 
Or  was  in  distress,  ...... 

Of  confirmation  of  the  sale,  .... 


460 
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463 

464 

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465 

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466 

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467 

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.    469 

/  469 

.    469 

.     469 

.    470 

.    471 

.    471 

.    471 

.     471 

.    471 


CHAPTER  XVII. 

DUTIES  OF  TRUSTEES  FOR  PAYMENT  OF  DEBTS. 

Trust  created  by  will,  .  .  .  .  .  .  .474 

By  act  inter  vivos,  ........     474 

1.  Where  person  is  not  a  trader,  .....     474 

Insolvent  Debtor's  Act,       .  .  .  .  .  .  .475 

Trust  attended  with  fraud,  .  .  .  .  .  .  .476 

Voluntary  trust,       .  .  .  .  .  .  .  .476 

Terras  of  the  composition  must  be  observed,  ....     476 

2.  Where  person  is  a  trader,        ......     477 

Bankruptcy  Act,      ........     477 

Creditors  acquiescing,  .  .  .  .  .  .  .479 

Late  act  allows  a  composition,         ......     479 

Trader  may  assign  part  of  his  property,      .....     480 

Division  of  trusts  for  payment  of  debts,       .....     480 

1.  Irrevocable  trusts,        .  .  .  .  .  .  .     481 

2.  Revocable  trusts,         .  .  .  ,  .  .  .481 


CONTENTS. 


XXVll 


Duties  of  trustees  for  payment  of  debts, 

What  debts  are  to  be  paid,  . 

Debts  barred  by  Statute  of  Limitations, 

Infants'  debts. 

Mortgage  witli  covenant,     . 

Creditors  to  come  in  within  a  certain  time, 

Discretion  given  to  trustees, 

Order  of  payment,    . 

Creditors  and  legatees. 

All  creditors  'paid pari passu,^ 

Specialty  creditors,  . 

Trustee  who  is  also  executor, 

Allowance  of  interest, 

Specialty  debts. 

Bond  creditors,         .  .  • 


481 
481 
484 
485 
485 
486 
486 
487 
487 
488 
488 
488 
489 
491 
491 


CHAPTER   XVIII. 


DUTIES  OF  TRUSTEES  FOR  CHARITIES. 

Charities  either  in  the  hands  of  trustees  or  incorporated,    . 
Prefatory  remarks  on  the  visitatorial  power. 
Distinction  between  original  endowment  and  new  donations. 
The  Lord  Chancellor  in  certain  cases  the  visitor,   . 
Duties  of  trustees  for  charities,        .... 

Must  not  divert  the  fund  to  other  charitable  purposes,       ; 
Chapels,       ....... 

Trust  in  aid  of  rates,  ..... 

Trust  for  maintaining  the  worship  of  God, 
Appointment  of  new  trustees,  .... 

Meeting-house,         ...... 

A  corporation  with  power  of  making  bye-laws, 

"Whether  Court  can  sanction  aberration  from  founder's  intention 

No  total  alteration  without  authority  of  Parliament, 

The  application  of  the  fund  may  in  certain  cases  contravene  the 

the  endowment. 
Free  Grammar  School, 
Grammar  School  Act,  (3  &  4  Vict.  c.  77) 
"  Finding  a  master," 
"  Relief  of  poor,"     . 
"  Repairing," 

Augmentation  and  reduction  of  salaries. 
Loans,  .... 

Retainer  of  charity  revenue. 

Of  alienations  of  the  charity  estate. 

Recent  charity  Acts, 

Accumulations, 

Trustees  cannot  lease  the  charity  lands  to  one  of  themselves. 

As  to  discretion  of  taking  fines  or  reserving  rents  upon  leases. 

Of  inadequate  consideration  for  the  lease. 

Of  unreasonable  extent  of  the  term. 

Of  husbandry  or  farm  leases. 

Leases  on  lives, 

Of  building  leases,  . 

Foregoing  rules  subject  to  donor's  intention  to  the  contrary. 

Improvements  by  lessees,    ..... 

Disabling  effect  of  the  Charitable  Trusts  Amendment,      . 


letter  of 


492 
492 
494 
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495 
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496 
496 
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XXVUl 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


CHAPTER  XIX. 

THE  POWERS  OF  TRUSTEES. 
Section  I. 

OF  THE  GENERAL  POWERS  OF  TRUSTEES. 

Powers  at  law  distinguished  from  those  in  equity, 

Rule  in  the  simple  trust,      .  .  .  •  ■ 

Rule  in  the  special  trust,     .  .         _    • 

Trustee  may  exercise  discretion  under  circumstances,     _  . 

Trustee  may  do  without  suit  what  is  compellable  by  suit, 

Repairs,       .... 

Cutting  timber, 

Opposing  bill  in  Parliament, 

Insurance,   .... 

Executor  may  appropriate  a  legacy, 

May  allow  maintenance  to  infant  out  of  the  interest  of  his  legacy, 

And,  under  certain  circumstances,  out  of  the  principal,     . 

May  sink  part  of  the  capital  for  infant's  advancement,  where  he  could  not 
for  his  maintenance,     ....... 

Cannot  apply  principal  where  limitation  over,         .... 

Except  the  limitation  be  by  way  of  survivorship  among  the  children  them- 
selves, ........ 

Has  power  to  release  or  compound  debts,  ..... 

Whether  a  trustee  mortgagee  can  release  part  of  the  land  in  mortgage,     . 

May  reimburse  himself  a  payment  made  in  his  own  protection  as  trustee. 

May  grant  reasonable  leases,  ...... 

Power  of  varying  securities,  ...... 

Case  of  suit  instituted,         ....... 

Case  of  suit  and  no  decree,  ...... 

Section  II. 

OF  THE  SPECIAL  POWERS  OF  TRUSTEES. 

I.  Of  the  different  kind  of  powers,  .  -  '  .  . 
Distinction  between  legal  and  equitable  powers,     .... 
Equitable  powers  whether  annexed  to  the  estate  or  simply  collateral. 
Distinction  between  mere  powers  and  powers  coupled  with  a  trust. 
Between  strict  and  directory  powers, 

II.  Of  the  construction  of  powers. 
Power  to  A.  and  B.  and  "  their  heirs," 
To  A.  and  his  ''  assigns,"    ..... 
Power  indicating  personal  confidence  to  A.  and  his  "  executors," 
To  "  executors,"  "  sons  in  law,"  "trustees," 
To  trustees  and  the  "  survivors  of  them,"  . 
Power  during  continuance  of  the  trust,       •  .  .  .  . 

III.  Of  the  effect  of  disclaimer,  assignment,  and  survivorship  of  the 
estate,    . 

Effect  of  disclaimer  opon  powers,   . 

Of  assignment  of  the  estate,  ..... 

Whether  power  will  remain  in  trustee  after  alienation  of  the  estate, 

Case  of  real  and  personal  estate  blended  together, 

The  Court  may  sanction  the  severance  of  the  estate  from  the  powers 

Of  SMr»u-or.9/itp  among  the  trustees,  .  -  .  ,    ' 

[Remarks  upon  powers  before  the  Statute  of  Uses,  '.  537 

Survivorship  where  power  given  to  the  trustees  by  name,  .  ' 

Powers  not  annexed  to  the  trust,     •....* 

IV.  Of  the  control  exercised  by  the  Court  over  powers, 


512 
512 
512 
513 
513 
513 
515 
515 
516 
517 
517 
517 

518 
519 

519 
520 
521 
521 
522 
523 
523 
524 


524 
524 
525 
526 
527 
527 
527 
529 
530 
530 
531 
531 


.  532 

.  532 

.  533 

.  534 

.  534 

.  535 

.  536 

note  (1)] 

.  637 

.  538 

.  538 


CONTENTS.  xxix 

The  Court  will  not  control  mere  powers,     .....     538 

Except  there  be  fraud,         .......     543 

Or  suit  has  been  instituted,  ......     544 


CHAPTER    XX. 

OF  ALLOWAXCES  TO  TRUSTEES. 

Sectiox  I. 

ALLOWANX'ES    FOR   TIME   AND    TROUBLE. 

No  allowance  in  general  for  time  and  trouble,         ....  545 

Rule  applies  to  executors,  mortgagees,  &c.,             ....  546 

Trustees  for  absentees  of  West  India  estates  are  allowed  a  commission,    .  546 

Rate  of  commission  in  Jamaica,      ......  546 

Mortgagees  in  possession  of  West  India  estates,     ,             .             .             .  546 
Of  the  commission  allowed  to  executors  in  the  East  Indies,            .             .  547 
Person  constructively  a  trustee  may  be  paid  for  his  trouble  in  the  manage- 
ment of  a  trade,             .......  548 

But  not  an  express  trustee,               ......  549 

Solicitors  and  attorneys  allowed  expenses  out  of  pocket  only,         .             .  549 

The  author  of  the  trust  may  order  an  allowance,    ....  550 

Where  quantum  not  specified,          ......  551 

Of  contracts  between  trustees  and  cestui  que  trust  for  an  allowance,          .  551 

The  contract  must  be  fulfilled  to  the  letter,              ....  553 

Trustees  may  contract  with  the  Coui't,        .....  553 

Usury  law  prevents  a  mortgagee  bargaining  for  compensation,      .             .  556 

But  he  may  save  his  own  trouble  by  employment  of  agents,            .             .  556 

Or  a  collector  of  rents,  bailiff,  attorney,  or  accountant,       .             .             .  556 

Section  II. 

ALLOWANCES   TO    TRUSTEES    FOR   EXPENSES. 

Allowance  will  be  made  to  trustee  for  all  actual  expenses,  .  .557 

Though  remunerated  for  his  trouble  besides,           ....  558 

Case  of  trustee  who  has  not  kept  account  of  expenses,        .             .             .  559 

Trustee  will  be  reimbursed  a  payment  made  for  his  own  protection,           .  559 

Trustee's  expenses  a  lien  upon  the  estate,  .....  560 

Trott  V.  Dawson,      ........  560 

No  Zten  in  favour  of  agents  of  the  trustee,  .  .  .  .561 

How  expenses  recoverable  when  no  trust  estate,    ....  562 

Claim  against  the  cestui  que  trust  personally,         ....  563 

Funds  out  of  which  expenses  payable,        .....  564 


CHAPTER    XXI. 

HOW  A  TRUSTEE  MAY  OBTAIN  HIS  DISCHARGE  FROM  THE 

OFFICE. 

I.  May  retire  with  consent  of  all  the  cestuis  que  trust,     .            .            .  565 
1?  all  he  sui  juris,                 .......  565 

II.  May  retire  by  virtue  of  a  special  power  in  the  trust  deed,     .             .  566 
The  usual  power  stated,       .......  566 

Whether  a  new  trustee  actually  such  until  the  estate  has  been  transferred,  567 

Mode  of  vesting  the  trust  estate,      ......  568 

Construction  of  the  power,  ......  570 

January,  1858. — 3 


XXX 


LEWIN    OxN    THE    LAW    OF    TRUSTS,    ETC. 


Sharp  V.  Sharp,        .  •  • 

Meaning  of  the  word  "  survivor,      . 
Meaning  of  the  word  "  acting,"        •  .-.      „* 

"  Refusing  or  declining"  includes  "  disclaiming,     . 
"  Refusing  or  declining"  means  also  after  having  acted, 
Morris  v.  Preston,  .  •  •  •  * 

Power  to  tenant  for  life  icitli  trustee. 
Trustee  becoming  bankrupt  "  unfit,'^ 
Trustee  resident  abroad,      .  .  •  • 

Two  trustees  cannot  relinquish  in  favour  ot  one,    .  _ 
Case  of  one  trustee  substituting  more  than  one  in  his  pi 
One  trustee  cannot  relinquish  to  the  other, 
Appointment  of  one  trustee  in  the  place  of  several, 
Appointment  of  two  trustees  at  once, 
Appoinment  of  a  cestui  que  trust,  or  near  relation,  as 
Of  severing  a  trusteeship,    -  .  .  • 

Of  powers  of  appointment  of  a  directory  character, 
Power  will  be  no  protection  where  there  is  fraud. 
Result  where  a  new  trustee  is  ineffectually  appointed,     _ 
III.  Trustee  may  get  himself  discharged  by  application 
equity,  .... 

Where  no  new  trustee  can  be  found, 
How  application  should  be  made, 
Costs,  .  .  .  •  • 

Application  by  representative  of  deceased  trustee 
Complication  of  trusts  by  acts  of  tenant  for  life, 


trustee 


to  a 


court  of 


570 
570 
571 
571 
572 
573 
573 
574 
574 
574 
574 
577 
577 
578 
579 
579 
580 
580 
581 

582 
582 
583 
583 
584 
584 


PART  III. 

THE  ESTATE  OF  THE  CESTUI  QUE  TRUST. 


CHAPTER  XXII. 
IN  WHAT  THE  ESTATE  OF  CESTUI  QUE  TRUST  CONSISTS. 

Section  I. 

THE  ESTATE  OF  CESTUI  QUE  TRUST  IX  THE  SIMPLE  TRUST. 

1.  The  jus  Jiabendi,  or  cest^l^s  que  trust  right  to  the  pernancy  of  the 

profits,               ........  585 

Entitled  to  the  possession  of  lands,             .....  585 

Except  there  be  some  interest  in  another  person,                .             .             .  586 

Right  to  the  possession  recognized  in  equity  only,  not  at  law,        .             .  590 

Lord  Mansfield's  doctrines,  since  overruled,            ....  590 

Possession  of  title  deeds,     .  .  .  .  .  .  .591 

Cestui  que  trust  qualified  to  be  a  juror,      .....  592 

So,  before  late  Game  Act  qualified  to  sport,            ....  593 

As  to  right  of  ces^wi  gt/e  fms/!  to  vote  for  coroner,               .             .             .  592 

Has  right  to  vote  at  elections  for  members  of  Parliament,             .             .  593 
Of  his  right  to  the  possession  of  trust  chattels,      .             .             .             .593 

How  usually  empowered  to  receive  dividends,         ....  594 

2,  Of  cestui  que  trust's  jus  clisjMiumdi,               .             -             .             .  595 

Trustee's  conveyance,          .......  596 

Trustee  to  bar  dower,          ...'.'.'!  596 

Intermediate  trusts,             ..*.!'*'  596 


CONTENTS. 


Section  II. 


The  estate  of  cestui  que  trust  in  the  special  trust  .  .  .  597 

Where  only  one  cestui  que  trust,  or  all  cestuis  que  trust  of  one  mind,  the 

special  trust  same  as  a  simple  trust,  ....  597 

But  special  trust  continues  until  election  expressed,  .  .  .  598 

The  special  trust  must  be  a  lawful  one,      .....  599 


CHAPTER   XXIII. 

OP  THE  PROPERTIES  OF  THE  CESTUI'S  QUE  TRUST  ESTATE 
AS  AFFECTED  BY  HIS  ACTS  OR  BY  OPERATION  OF  LAW. 

Section  I. 


Act, 


inquiries. 


OP   ASSIGNMENT. 

Form  of  assignment, 

Power  of  equitable  tenant  in  tail, 

Summary  of  law  before  the  Fines  and  Recoveries 

Cautions  in  assignments  of  equitable  interests. 

Priority  of  charge  from  priority  of  notice. 

The  principle  of  the  doctrine, 

Distinction  between  real  and  personal  estate. 

Notice  in  respect  of  real  estate, 

Second  incumbrancer  giving  notice  but  making  no 

Notice  to  one  of  several  co-trustees, 

Death  of  single  trustee  to  whom  notice  given. 

Notice  to  all  the  trustees,  and  all  dying,     . 

Time  of  giving  notice, 

To  whom  notice  should  be  given,    . 

Case  of  the  fund  being  in  Court,     . 

Notice  to  trustee  where  fund  in  Court,  and  neither 

order,  .... 

Case  where  there  is  no  trustee, 

Section  II. 


OF   TESTAMENTARY    DISPOSITION. 

How  trust  of  freeholds  to  be  devised, 
Trust  of  copyholds,  .... 

Where  no  custom  to  devise  the  legal  estate  of  copyholds. 
Of  customary  freeholds,      .... 
Late  Wills  Act,       ..... 

Section  HI. 

OF  seisin  and  disseisin. 

Equitable  seisin,     ..... 
Possessio  fratris  of  a  trust. 
What  is  equitable  disseisin. 
Marquis  of  Cholmondeley  v.  Clinton, 

Section  IV. 

OF  DOWER  AND  CURTESY. 

Dower  and  curtesy  of  a  trust, 


assignee  obtains  a  stop 


600 
601 
604 
604 
605 
605 
007 
607 
608 
609 
610 
611 
612 
612 
613 

614 
614 


615 
615 
616 
617 
617 


617 
618 
618 

618 


621 


XSXll 


LEWIN    OX    THE    LAW    OF    TRUSTS,    ETC. 


Freebench,  .  .  •  • 

What  seisin  reqiiired  to  give  curtesy, 
Curtesy  where  there  is  separate  use, 
Distiuction  between  dower  and  curtesy, 
How  curtesy  came  to  be  allowed,  and  not  dower, 
Late  Dower  Act,      .  .  •  • 

Section  V. 

OF  THE  ESTATE  OF  A  FEME  COVERT  CESTUI  QUE  TRUST. 

1.  In  pure  personal  estate  not  settled  to  separate  use,    . 

Equity  to  a  settlement,         ...•••• 
Ki2;ht  by  survivorship,  ...•••• 

2.  Equitable  chattels  real  of  feme  covert,  .... 
Whether  wife  entitled  to  a  settlement  out  of  equitable  chattels  real, 
Result  of  decisions,              .             •             •  _          • 

Effect  of  getting  in  legal  estate  in  wife's -^iquitable  term,    . 
Estate  by  elegit  in  trust  for  a  feme  covert,  .... 

Mortgage  term  in  trust  for  a  feme  covert,    ..... 
Equitable  term  in  trust  for  separate  use,     ..... 

3.  Wife's  equitable  interest  in  lands  of  freehold  or  inheritance, 

4.  The  wife's  separate  estate,       ...... 

General  rule,  ........ 

General  engagements  of  a  feme  covert  in  writing, 

General  engagements  not  in  writing,  ..... 

Lord  Brougham's  exposition  of  the  principles  regulating  the  liability  of 

the  separate  estate,       ....... 

Ijord  Cottenham's  view,       ....... 

Result  of  judgments  of  Lord  Brougham  and  Lord  Cottenham, 
Observations  of  V,  C.  Kindersley  respectingye/we's  verbal  engagements,  . 
Case  of  clear  contradiction  of  intention,      ..... 

Breach  of  trust  by /e;ne  cowr^,         ...... 

View  of  Lord  St.  Leonards  in  reference  to  breaches  of  trust  by  a  feme 

covert  having  a  separate  estate,  ..... 

Nature  of  the  relief  against  the  separate  estate,      .  .  .  . 

Where  no  power  of  anticipation,      ...... 

Stock  settled  to  separate  use,  ...... 

Creditors'  suit  after  death  of  feme  covert,     ..... 

Power  of  disposition  by  will  of  separate  estate,       .... 

Separate  estate  undisposed  of  survives  to  the  husband. 

Arrears  of  separate  estate,  ...... 

Case  of  feme  covert  non  compos,      ...... 

Special  consideration  of  separate  use  in  reference  to  real  estate,    . 

No  acknowledgment  needed  of  conveyance  of  real  estate  settled  to  separate 

use,   .     .     .     .  '    . 


621 
622 
623 
624 
625 
626 


627 
628 
628 
629 
629 
630 
630 
630 
631 
631 
631 
632 
632 
633 
634 

635 
636 
638 
638 
639 
639 

640 
640 
641 
642 
642 
642 
642 
642 
644 
644 

646 


Section  VI. 

JUDGMENTS    AGAINST    THE    CESTUI    QUE    TRUST. 

Writs  of  execution  at  common  law. 

Statute  of  Westminster, 

Froni  what  time  chattel  interests  in  land  bound, 

Fieri  facias  as  regards  trusts, 

Trusts  not  bound  by  it  before  execution  sent  out 

Nor  where  legal  estate  not  liable,    .  .  ' 

Equity  of  redemption, 

Levari  facias, 

Whether  equity  can  adopt  the  elegit  bv  analorry, 

Trust  at  one  time  held  not  to  be  subject  to  ele""it 

Secus  now,      .     ^  ^  ' 


646 
64T 
647 
648 
648 
648 
649 
649 
649 
650 
650 


CONTENTS. 


xxxiu 


Doctrine  laid  down  by  Sir  J.  Leach,  .  .  .  .  .     G52 

Land  to  be  converted  into  personalty  not  bound  formerly  by  a  judgment,     653 
Judgment  entered  up  against  vendor  after  contract  to  sell,  .  .     654 

Whether  in  case  of  conveyance  upon   trust  to  sell  for  limited  purpose, 

surplus  proceeds  bound  by  a  judgment,  ....     C5G 

Altered  state  of  the  law,      .......     CoG 

Practical  result,       ........     657 

How  much  of  the  estate  might  be  taken  in  execution,        .  .  .     657 

Grounds  on  which  he  may  come  into  equity,  ....     658 

Entitled  to  moiety  only  of  a  trust,  ......     658 

But  to  entirety  of  equity  of  redemption,      .....     660 

Case  of  trust  by  way  of  mortgage,   ......     661 

Whether  necessary  before  suit  to  take  out  actual  elegit,      .  .  .662 

Bill  of  judgment  creditor  after  the  death  of  the  conusor,    .  .  .     663 

Of  execution  against  the  trust  estate  under  Statute  of  Frauds,       .  .     664 

Whether  equitable  elegit  where  no  legal  elegit  of  a  trust,  .  .     665 

Statute  of  1  &  2  Vict,  c.  110,  ss.  11,  13,  18,  and  19,  .  .  .     666 

3  &  4  Vict.  c.  82,    .  .  .  .  .  .  ,  .668 

18  &  19  Vict.  c.  15,  .  .....     669 

Construction  of  the  Ants,     .......     669 

Consideration  of  the  charging  order  provisions  of  the  1  &  2  Vict.  c.  110,       669 

1.  By  whom  the  charging  order  should  be  made,  .  .  .     670 

2.  Charging  order  will  be  made  without  deciding  on  the  quantum  of 
interest  charged,  .  .  .  ,  .  .  .670 

3.  Bank,  &c.,  bound  to  pay  trustee  notwithstanding  charging  order  on 
\xiiQr(i?,i  oi  cestui  que  trust,       ......     671 

4.  Proviso  at  end  of  s.  14  does  not  prohibit  a  suit  for  merelj  protecting 
interest  charged,  .  .  .  .  .  .  .671 

5.  Effect  of  charging  order  in  reference  to  other  incumbrances,  .  671 
Case  of  lands  lying  in  a  register  county,  .....  672 
Judgment  postponed  to  subsequent  purchase  or  mortgage  without  notice,  672 
Case  where  subsequent  purchaser  or  mortgagee  has  notice,           .  .672 


Section  VIL 
of  extents  from  the  crown. 


Trusts  subject  to  extents, 
May  be  sold  under  25  G.  3, 
Equity  of  redemption, 


c.  35, 


673 

673 
674 


Section  VIIL 

of  forfeiture. 

Trusts  not  forfeitable  for  attainder  at  common  law, 

Forfeitable  for  treason  by  enactment, 

Equities  of  redemption  forfeitable. 

Trusts  for  aliens  forfeitable  at  common  law, 

Trusts  for  chattels  forfeitable. 

Forfeiture  by  tenant  for  life, 


674 
674 

677 
677 
677 
678 


Trust  not  subject  to  escheat, 
Burgess  v.  Wheate,  . 


Section  IX. 
OF  escheat. 


678 
678 


Section  X. 

OF    descent    OF   THE    TRUST. 

Trust  descends  as  the  legal  estate, 


680 


XXxiv  LEWIX    ON    THE    LAAY    OF    TRUSTS,    ETC. 

Thougb  there  be  lex  loci,  as  gavelkind,  .  •  •  •  '  680 

Possessio  fratris  o'i  &  ivxxsl,  •  •  •  •  '  *  gg^ 

Proceeds  from  sale  of  gavelkind  lands,  .  •  •  *  '  gsi 

Limitation  to  heirs  as  purchasers,  .  .  •  •  • 

Section  XL 

OF    ASSETS. 

Trusts  of  chattels  always  assets,      .  .  V.  t-i       j* 

Whether  trusts  of  freeholds  assets  before  Statute  of  Frauds, 
Construction  of  that  statute,  .  .  .  • 

Late  Act  for  more  eflectual  payment  of  debts, 
Whether  trusts  of  chattels  are  legal  or  equitable  assets,     . 
Whether  trusts  in  fee  are  legal  or  equitable  assets, 
Construction  of  late  Act  for  more  eflectual  payment  of  debts. 


681 
681 
684 
685 
685 
688 
691 


CHAPTER    XXIV. 

CESTLTS  QUE  TRUST  RELIEF  AGAINST  THE  FAILURE  OF  THE 

TRUSTEE. 

Where  the  terms  of  the  trust  can  be  ascertained,  equity  follows  the  estate,  693 

Trustee  dying  in  the  testator's  lifetime  or  otherwise  failing,            .             .  693 

Direction  to  sell  and  trustee  not  named,     .....  694 

Gift  to  separate  use,  and  no  trustee  named,  ....  694 
If  the  trust  be  in  form  of  a  power,  the  Court,  on  failure  of  trustee,  will 

execute  it,        .......             •  694 

Where  rule  to  go  by,  the  Court  exercises  the  discretion  for  the  trustee,      .  696 

[Construction  of  bequest  to  poor  relations,  .  .  698,  note  (1.)] 
How  the  Court  will  exercise  the  power  where  the  settlor  has  laid  down  no 

rule,     .........  699 

In  such  a  case  the  Court  adopts  the  maxim  that  equality  is  equity,           .  700 

Words  of  "gift"  and  words  of  "power "  distinguished,       .             .             .  700 

Upon  trust  for  the  children  of  A.  as  B.  shall  appoint,         .             .             .  700 

Upon  trust  to  dispose  amongst  the  children  of  A.,              ...  700 

Discretion  as  to  the  objects  of  the  power,  .....  701 

In  favour  of  what  objects  the  Court  will  exercise  a  power  imperative,       .  703 

Where^imraediate  exercise  contemplated,  .....  703 

Where  immediate  exercise  not  contemplated,  .  .  .  .704 

1.  Where  power  testamentary,    ......  -704 

2.  Where  not  merely  so,               ......  704 

How  Court  will  execute  power  in  favour  of  "  relations,"    .             .             .  705 

As  to  persons  amongst  whom,         ......  705, 

As  to  shares  in  which,         .......  706 

Case  of  power  of  selecting  one  of  a  class,  .  .  .  .  .707 


CHAPTER  XXV. 

RIGHTS  OF  CESTUI  QUE  TRUST  IN  PREVENTION  OF  A  BREACH 

OF  TRUST. 

I.   Cestui  que  trust  entitled  to  appointment  of  proper  trustees  and  pro- 

per  number  of  trustees,         .  .  .  .  .  .     710 

Of  substitution  of  trustees  on  death,  incapacity  to  discharge  the  office,  &c.!     710 
Vt  trustees  not  answering  description  of  "  inhabitants,"     .  .  711 

Court  will  not  dismiss  trustee  from  caprice  of  cestui  qxie  trust,       .  .712 


CONTENTS. 


Trustee  substituted  by  the  Court  has  not  the  special  powers  of  the  origi 
nal  trustee,    ....... 

Appointment  of  new  trustee  under  Sir  E.  Sugden's  Act,    . 
Under  the  Trustee  Act,  1850,         ..... 

Under  the  Bankruptcy  Act,  ..... 

Case  of  charitable  trusts,     ...... 

Jurisdiction  under  5  &  G  W.  4,  c.  76,  . 

Charitable  Trusts  Act,         ...... 

II.  Cestui  que  trust  may  compel  trustee  to  the  observance  of  any  act  of 

duty,  ....... 

Sir  J.  Jekyll's  dictum,  that  laches  of  trustee  shall  not  prejudice  cestui  que 

trust,  ....... 

Consideration  of  the  recent  Statute  of  Limitations, 

Allen  V.  Sayer,         ....... 

Where  tenant  for  life  misapplies  proceeds  of  renewable  leaseholds,  re 

ceiver  appointed,      ...... 

Case  of  trustee  required  to  give  security,    .... 

III.  Cestui  que  trust  may  restrain  trustee  from  committing  a  breach  of 
trust  by  injunction,  ...... 

And  whether  damage  irremediable  or  not,  .... 


712 
713 
714 
714 
716 
716 
718 

718 

719 
719 
720 

722 
723 

723 
723 


CHAPTER   XXVI. 

REMEDIES  OF  CESTUI  QUE  TRUST  IN  EVENT  OF  A  BREACH  OF 

TRUST. 


Section  I. 

OF  FOLLOWIXG  THE  TRUST  ESTATE  INTO  HANDS  OF  A  STRANGER. 

General  rule,  .  .  .  .  .  .  .  .724 

I.  If  the  alienee  be  a  volunteer,  .....  724 
Purchaser  without  notice  from  a  purchaser  with  notice,  .  .  .  726 
Purchaser  with  notice  from  a  purchaser  without  notice,  .  .  .  726 
How  far  purchaser  bound  by  notice  of  a  doubtful  equity,  .             .             .  727 

II.  No  time  bars  a  direct  trust ;  otherwise  in  a  constructive  trust,         .  729 

1.  Of  the  bar  in  equity  by  analogy  to  a  statute  of  limitation,  .  .  731 
Period  limited  for  recovery  of  lands  is  20  years,  ....  732 
Ignorance  or  mistake  of  plaintifiF  no  excuse,  ....  733 
Time  does  not  run  in  case  of  fraud  undiscovered,  ....  734 
How  statute  must  be  taken  advantage  of,  .             .             .             .             .  734 

2.  Of  presumption  of  some  act  in  bar  of  the  plaintiff's  claim,     .             .  735 
Time  within  which  the  presumption  arises,              ....  735 

Ground  of  Court's  raising  the  presumption,             ....  736 

Waiver.     Acquiescence,      .......  737 

No  presumption  during  ignorance  or  mistake,  &c.,             .             .             .  737 

Presumption  cannot  be  taken  advantage  of  by  demurrer,  .             .             .  738 

3.  Of  the  bar  in  equity  arising  from  great  public  or  private  incon- 

venience,      ........  739 

Bar  from  length  of  time,      .......  741 

Late  Act  for  Limitation  of  Actions  and  Suits,         ....  743 

III.  Of  accounting  for  mesne  rents  and  profits,  .  .  .  750 
Defendant  prima  facie  must  account  from  commencement  of  wrongful 

title,  .  .  .         .  .  .  .  .  .751 

Several  exceptions  to  the  rule,         ......  752 

Bill  for  relief  followed  by  bill  for  account,  .....  752 

Wording  of  the  order,           .......  752 

Liability  of  trustee  for  mesne  rents  and  profits,      ....  752 

[The  subjectof  accounting  for  mesne  rents  and  profits  considered  generally, 

752,  note  (1.)] 


XSXVl 


LEAVIN    OX    THE    LAW    OF    T  K  U  S  T  S,    ETC. 


Section  II. 

RIGHT   OF   ATTACHING   THE   PROPERTY   IxXTO   WHICH  THE  TRUST   ESTATE  HAS  BEEX 
WRONGFULLY  CONVERTED. 

General  rule,  ••••••••  J?^ 

"  Money  has  no  earmark,"  ...•••  ij>' 

Trust  money  mixed  with  trustee's  money,  .  •  •  '  I^o 

Following  money  into  land,  .  •  •  *     .        *  *  l^~ 

Whether  cestui  que  trust  can  take  the  estate,  or  has  only  a  lien,    .  .  iQb 

Section  III. 

OF   CESTUl's   que   TRUST   REMEDY   AGAINST  TRUSTEE  PERSONALLY  FOR  COMPENSA- 
TION. 

Land  tortiously  sold,             .....••  763 

Neglect  to  purchase  stock,               .             .             .             •             •             '  t^"^ 

Policy  forfeited,       ,             .             .             .             •             •             •             "  ^^f 

Person  acting  as  trustee  but  not  such,        .             .             .             .     _        .  765 

Trustee  and  his  assets  liable  for  damage  to  trust  estate  as  for  a  simple 

contract  debt,  .             .             .             .             •             •             •             .  <  65 

Immaterial  whether  trustee  was  a  gainer  by  the  breach  of  trust  or  not,     .  765 

Or  whether  loss  would  have  occurred  had  no  breach  been  committed,       .  766 

Trustee  not  charged  with  imaginary  values,  &c.,    ....  766 

Where  co-trustees,  all  must  be  made  parties,  but  each  liable  in  toto,         .  767 

Corporators,             ........  767 

As  amongst  the  parties  to  the  breach  of  trust  the  person  benefited  or  the 

contriver  of  the  fraud  suffers,  ......  768 

Interest  of  party  to  a  breach  of  trust  may  be  stopped  to  make  compensation,  771 

Proof  against  estate  of  bankrupt  trustee,    .....  771 

How  far  trust  debt  barred  by  the  certificate,  .  .  .  .772 

Bankruptcy  of  co-trustees,  .......  773 

Of  ces/!a''s  5Me /rw.9i!  concurrence  in  the  breach  of  trust,    .             .             .  773 
Femes  covert  and  infants  cannot  concur,     .             .             .             .             .774 

Coverture  and  infancy  no  protection  in  case  of  fraud,         .             .             .  774 
Feme  covert  bound  by  concurrence  in  regard  to  a  fund  settled  to  her  sepa- 
rate use,           ........  775 

Of  acquiescence,     ........  775 

Fluctuating  body,    .  .  .  .  .  .  ,  .777 

Creditors,    ........             .  777 

Of  release  and  confirmation,  .  .  .  .  .  .777 

Section  IV. 

OP   REDRESS   IN   BREACHES   OF   TRUST   BY   TRUSTEES   FOR   CHARITIES 

I.  Mode  of  redress,  .... 
Of  commissions  under  Statute  of  Charitable  Uses, 
52  Geo.  3,  c.  101,  or  Sir  S.  Romilly's  Act, 

Points  resolved  upon  that  Act,        .....  780- 

Acts  appointing  Commissioners  of  Inquir\ 
Charitable  Trusts  Act,  1853, 
Charitable  Trusts  Amendment  Act, 

II.  Of  the  ex'/en^  of  redress,         .... 
To  what  period  of  time  the  account  of  mesne  rents  and  profits  against 

trustees  of  charities  will  be  restricted, 

1.  Statutes  of  limitation  not  applicable, 

2.  How  farpresumption  applicable, 
3._  liar  arising  from  inconvenience, 

RiSr"i?Tf  ''''IT*"'  *™'.^^^'  ^"^  individuals  in  respect  of  implied  notice, 
ureacii  ot  trust  by  a  parish  ,  i  i  ? 

Mode  of  attaching  corporation  property. 


778 
779 
779 
783 
783 
784 
785 
786 

786 
786 
786 
787 
790 
791 
791 


CONTEXTS. 


XXXVll 


CHAPTER    XXVII. 

MAXIMS  OF  EQUITY  FOR  SUSTAINING  THE  TRUE  CHARACTER 
OF  THE  TRUST  ESTATE  AGAINST  THE  LACHES  OR  TORT  OF 
THE  TRUSTEE. 

Section  I. 


WHAT   OUGHT   TO    BE    DONE    SHALL   BE   CONSIDERED   AS   DONE. 

Money  to  be  laid  out  on  land  shall  be  taken  as  land,  and  land  to  be  turned 

into  money  shall  be  taken  as  money,  .  .  -  .  .     793 

Money  to  be  laid  out  on  land  is  subject  to  curtesy,  .  .  .     71i3 

Whether  subject  to  dower,  .  .  .  .  .  .  .793 

Not  subject  to  escheat,        .......     795 

Could  not  have  been  devised  by  an  infant,  ....     79G 

Passes  in  will  by  description  of  "lands,"'    .....     796 

Bound  by  judgments,  &c.,  .......     796 

Not  to  be  brought  into  hotchpot  by  child  claiming  an  orphanage  share,    .     797 
In  what  cases  will  go  to  heir  of  person  upon  whom  the  land  is  directed  to 

be  settled,         ........     797 

Will  belong  to  heir  claiming  the  money  from  a  stranger,   .  .  .797 

Or  claiming  from  the  executor  of  his  own  ancestor,  if  any  limitation  of 

the  money  be  outstanding,        ......     798 

Otherwise,  if  the  money  be  "  at  home,"       .....     800 

Chichester  v.  Bickerstaff,     .  .  .  .  .  .  .800 

Pulteney  v.  Darlington,        .......     803 

Money  is  "  at  home"  when  actually  received,         ....     804 

Bequest  of  money  to  be  laid  out  on  lands  to  be  settled  to  testator's  right 

heirs,     .........     805 

Voluntary  covenant  to  purchase  lands  to  be  settled  to  covenanter  in  fee,  .     805 
Direction  for  conversion,  to  create  a  notional  conversion,  must  be  impei-a- 

tive,      .........     806 

Cases  of  direction  deemed  imperative  where  the  uses  were  exclusively  ap- 
plicable to  real  estate,  .  .  .  .  .  .806 

Conversion  at  "the  recjuest"  of  a  party,     .....     807 

Land  to  be  turned  into  money  passes  by  bequest  of  "  personal  estate,"  &c.,    807 
Alien,  .........     807 

Charity,        .........     808 

The  conversion  must  be  imperative,  .....     808 

Implied  conversion  in  bequests  of  wasting  property  to  persons  in  suc- 
cession, ........     808 

Intention  to  confer  enjoyment  in  specie  may  be  collected  from  the  bequest,   809 
Instances  of  the  general  rule,  .  .  .  .  .  809-812 

Rule  where  property  not  wasting,  but  of  a  class  not  authorised  by  the  Court,  812 
Direction  for  investment  of  personal  estate  and  accumulation  of  income,        813 
Devise  of  real  estate  upon  trust  to  sell  and  invest  proceeds  and  rents  until 

sale,      .........     813 

Produce  during  first  year  from  testator's  death,      .  .  .  .813 

Where  funds  are  in  the  state  they  ought  to  be,       .  .  .  .814 

Where  the  proper  investment  is  made  before  the  end  of  the  year,  .     814 

Where  the  funds  are  not  in  the  state  they  ought  to  be,       .  .  .814 

Discretion  expressly  given  by  the  testator,  .  .  .  .815 

Rents  of  devised  estate,       .  .  .  .  .  .  .816 

Election,      .  .  .  .  .  .  .  .  .816 

Who  may  elect,        .  .  .  .  .  .  .  .816 

Of  infants,  lunatics,  and  ^/I'/Hg.?  coi'erf,  .....     816 

Power  of  _/(?»ie  coreri!  over  money-land,       .....     816 

Special  power  of  married  women  under  Fines  and  Recoveries  Act,  .     817 

Of  remainder-men,  ........     818 


xssviu 


LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 


Of  several  parties  interested, 

Of  tenant  in  tail, 

39  &  40  G.  3,  c.  56, 

Effect  of  Fines  and  Recoveries  Act, 

In  what  manner  election  may  be  mad( 

Of  presumption  of  election, 

How  election  may  be  expressed,      . 

Money  to  be  turned  into  lands  may  be  pass 


ed  by  will  not  attested, 


Section  II. 

THE    ACT   OF   THE   TRUSTEE   SHALL   NOT   ALTER   THE   NATURE    OF    CESTUl's 

TRUST    ESTATE. 

Where  conversion  is  wrongful,  equity  neutralizes  it, 

Trustee  for  a  lunatic  cannot  convert,  unless  beneficial  to  lunatic  himself, 

Interest  of  lunatic's  successors  not  consulted, 

Heir  ex  parfe  patcrnu  has  no  equity  against  heir  ex  parte  malerna, 

Of  payment  of  lunatic's  debts  out  of  his  real  estate, 

Of  fall  of  lunatic's  timber,   . 

Of  redemption  of  lunatic's  mortgage  debts. 

Of  actions  in  lunatic's  name. 

Of  improvements,  repairs,  &c.. 

Conversion  will  not  be  made  unnecessarily. 

Distinction  between  lunatics  and  infants,    . 

Purchases  for  intants  can  only  be  made  s'nb  conditione, 

Timber  cut  on  infant's  land  continues  real  estate, 

Money  paid  in  discharge  of  mortgage  debts  continues  personalty, 

Conversion  allowable  for  necessary  expenses, 

Late  AVills  Act,         .... 


819 
820 
821 
822 
823 
823 
824 
824 


QUE 

825 

825 
826 
826 
826 
826 
827 
827 
827 
828 
829 
829 
829 
830 
830 
831 


CHAPTER   XXVIII. 

OF   STATUTORY    ENACTMENTS   FOR  REMEDYING    INCONVENI- 
ENCES ARISING  FROM  THE  DISABILITY  OF  THE  TRUSTEE. 


Statute  of  7th  Anne,  c.  19, 

Construction  of  Act,  .... 

Statute  of  4  Geo.  2,  c.  10,    . 

Lord  St.  Leonards'  Act,  (11  G.  4,  &  1  W.  4,  c.  GO,) 

Trustee  Act,  1850,  . 


832 
832 
833 
834 
840 


CHAPTER   XXIX. 

PLEADING  AND  PRACTICE  IN  REFERENCE  TO  THE  LAW  OF 

TRUSTS. 


Section  I. 

OF    NECESSARY    PARTIES. 

1.  General  rule  in  suits  by  or  against  Strangers, 
One  of  several  cedtds  que  trust  cannot  foreclose  or  redeem  alone. 
Mortgagee  commg  to  foreclose  and  mortgagor  to  redeem  must  make  all 

cestuis  que  trust  parties. 
Legal  termor  a  necessary  party,      ..'*'' 
Error  in  Lord  Redesdale's  Treatise  as  to  trustees  for  creditors,      '. 
oinular  error,  .  ^  ' 


841 
842 

842 
842 
843 
843 


CONTENTS. 


XSXIX 


Suits  for  specific  performance,         ......  844 

Marria^je  articles,     ........  844 

Representation  specially  constituted,           .....  844 

2.  Suits  by  parties  interested,  "  inter  se,"             ....  845 
In  suits  by  cestuis  que  trust  against  their  trustees,  all  the  latter  necessary 

parties,              ........  845 

Rule  the  same  though  equities  between  them  cannot  be  adjusted,              .  845 

Quasi-trustee  a  necessary  party,      *.....  84G 

Stranger  who  has  dealt  with  the  trust  fund  without  notice  not  a  necessary 

party,                  ........  84G 

Distinction  between  cases  of  a  mei'e  breach  of  trust  and  those  of  a  "  de- 
lictum,''            .             .             .             .             .             .             .             .  84G 

Representatives  of  trustee  who  had  no  interest  not  necessary  parties,         .  847 

Nor  trustee  who  disclaims,               ......  847 

Nor  a  trustee  out  of  the  jurisdiction,            .....  847 

Nor  representative  of  a  deceased  insolvent  trustee,              .             .             .  847 

Nor  trustee  of  an  outstanding  term,             .....  848 

Nor  trustee  of  a  mere  equity,           ......  848 

Nor  a  trustee  who  has  assigned,      ......  848 

Nor  a  trustee  who  is  a  mere  agent,              .....  84S 

Trusteeship  survives,  .  .  .  .  .  .  .849 

One  of  two  classes  of  trustees  may  be  sued,             ....  849 

All  cestuis  que  trust  necessary  parties  as  a  general  rule,     .             .             .  849 

Cestuis  que  trtist  abroad,     .......  849 

Cestui  que  trust  standing  out  process,         .  .  .  .  .850 

Or  assigning  his  interest,                  ......  850 

Cestui  que  trust  of  an  aliquot  share,             .....  850 

3.  Exceptional  cases. 

Suit  to  recover  a  trust  fund,              ......  850 

Where  cestuis  que  trust  extremely  numerous,  some  may  sue  on  behalf  of  all,  851 
So  some  may  defend  on  behalf,  &c.,             .             .             .             .             .851 

Requisites  to  entitle  some  to  sue,  &c.,         .             .             .             . '           .  851 

What  number  sufficient  to  dispense  with  the  strict  rule,     .             .             .  852 

4.  Special  enactments  and  General  Orders  varying  the  practice,  30th 
Order  of  26th  August,  1841,  .  .  .  .  .852 

Decisions  thereon,                 .......  852 

32nd  Order  of  26th  August,  1841,                .....  853 

Decisions  thereon,                 .......  853 

New  I'ules  as  to  parties  under  the  15  &  16  Vic.  c.  86,  s.  42,            .             .  854 

General  working  of  new  rules,         ......  855 

Decisions  on  rule  9,              ......             .  855 

47th  section  of  15  &  16  Vict.  c.  86,             .             .             .             .             .  856 

51st  section  of  same  Act,                 ......  856 


Section  II. 

OF  THE  ORDER  AND  MANNER  IN  WHICH  TRUSTEES  AND  CESTUIS  QUE  TRUST  OUGHT 
TO  APPEAR  UPON  THE  RECORD,  AS  WHETHER  JOINTLY  OR  SEVERALLY  AS 
PLAINTIFFS  OR  DEFENDANTS. 


Sir  Anthony  Hart's  statement  of  the  proper  course,  .  .  .     856 

Trustees  and  cestuis  que  trust  ought  to  join  in  defence,      .  .  .     857 

In  suits  "inter  56,"   cestuis  cjxie  trust  in  same  interest  should  join  as 

plaintiffs,  .  .  .  .  .  .  .  .857 

Trustees  should  defend  jointly,        ......     857 

lilovf  feme  covert  cestui  que  trust  should  sue  and  defend,    .  ,  .     858 


xl 


LEWIX    OX    THE    LAAV    OF    T  E  U  S  T  S,    ETC. 


8G2 
8G2 
862 
80.2 


Section  III. 

OF  DISTRIXGAS. 

Danger  to  winch  stock,  &c.,  exposed,  iu  consequence  of  the  legal  title  only  ^_^^ 

being  recognised,  ...••••  '^'^' 

Origin  of  the  Writ  of  Distringas,     .  .  •      ,„„•     ..^'o^       *  1% 

Practice  continued  notwithstanding  4  Anne.  c.  16,  and  39  &  40  G.  3,  c.  30,  8o  J 

Process  transferred  to  Chancery  on  the  abolition  ot  the  Equity  Exchequer,  bo 9 

Additional  remedy  given  by  5  Vict.  c.  5,  s.  4,  .  .  •  •  ^"^ 

Practice  under  the  4th  section,        ..•■••  ^l^ 

Transfer  of  the  old  Writ  of  Distringas,        .  .  •  •  "  q'. 

Form  of  new  Writ,  .  •  •  •     .        •  •  '  l^.\ 

Orders  of  the  Court  of  Chancery  regulating  the  practice,  .  •  boi 

Form  of  Affidavit,      _  .  .  •  •  •  •  '     t^.^y 

As  to  discharging  writ, 

Effect  of  service  of  writ. 

Affidavit  to  be  filed. 

Present  practice,  .  •  c  i      \  Qri 

Distinctions  between  remedies  under  the  4th  &  5th  sections  of  tlie  Act,    .     bhi 

Both  remedies  available  in  the  case  of  stock,  ....     863 

Section  IV. 

OF  COMPULSORY  PAYMENT  INTO  COURT. 

General  rule,  ........  ^C4 

Plaintiff  may  move  upon  a  possible  title,  ....  8bo 

Motion  must  be  founded  on  admissions  in  answer,  .  .  •  86o 

Answer  should  contain  an  admission  of  probable  title,        .  .  •  *^6G 

Payment  into  Court  must  be  on  the  footing  of  an  equity  alleged  by  the 

bill, .  .  .  B66 

Not  necessary  that  fund  should  be  actually  in  defendant's  hands,  .  866 

Payments  not  mentioned  in  answer  may  be  verified  by  affidavit,    .  .  867 

Pavment  not  ordered  on  a  mere  admission  of  circumstances  showing  a 

"  liability, 867 

Special  case  of  a  trustee  who  is  a  debtor  to  his  trust  estate,  .  •  868 

Payment  into  Court  at  the  hearing,  .....  ^68 

Time  allowed  for  payment  into  Court,         .....  869 

Section  V. 

OF    RECEIVERSHIP. 

Receiver  will  be  appointed  at  the  instance  of  all  the  cesfnis  que  trust,       .  869 

Also  where  trustee  is  guilty  of  misconduct,  or  is  insolvent,  bankrupt,  &c.,  870 
Where  executrix  a  feme  covert  and  husband  abroad,           .             .             .870 

Receiver  where  trust  estate  unprotected,     .....  870 

Receiver  not  granted  on  slight  grounds,       .....  870 
Receiver  not  discharged  at  the  mere  instance  of  the  party  procuring  his 

appointment,    .             .  •          .             .             .             ,             .     "       .  871 

Section  VI. 
OF  COSTS  OF  sriT. 

I.  Costs  as  between  trustees  and  strant^ers,         .  .  .     872 

VV  here  trustees  cannot  make  a  title,  .  872 

Trustee  made  a  defendant  as  a  necessary  party,     .  ".  '.  *.     872 


C  0  X  T  E  X  T  S. 


xli 


Plaintiff  failing,  not  necessarily  to  pay  costs  of  a  trustee, 
Trustee  has  costs  as  between  party  and  party  only, 
Costs  in  creditor's  suit,         .... 
Executor  (though   not  so  formerly)  now  held  entitled  to  his  costs  in  pre 
ference  to  the  plaintiff  in  creditor's  suit, 
II.  Costs  as  between  trustees  and  cestuis  que  trust,  inter 
Trustees  entitled  to  costs  as  a  generel  rule. 
Trustee  not  appearing,         .... 
Decree  passed,         ..... 
Disclaimer,  ..... 

Suit  originated  by  trustees'  misconduct, 
Where  misconduct  proved  only  in  part, 
Setting  aside  a  purchase  by  trustees,  and  absence  of  fraud 
Mistake  or  slight  neglect  of  trustee. 
Administration  suit  mainly  caused  by  a  breach  of  trust, 
Misconduct  of  the  trustee  discovered  in  the  progress  of  the  suit, 
Costs  of  discussing  a  doubtful  point  of  law, 
Costs  paid  in  part  and  received  in  part  by  trustee, 
Trivial  misconduct,  .... 

Trustee  instituting  a  suit  for  his  private  ends, 
Trustee  falsely  denying  the  plaintiff's  claims, 
Trustee  misstating  his  accounts, 
Corporation  (trustee)  pleading  ignorance  falsely,    . 
Corporation  (trustee)  suppressing  documents, 
Trustee  setting  up  title  of  his  own, 
Executor  denying  relationship  of  next  of  kin, 
Costs  where  executor  charo^ed  with  interest, 


872 
872 
873 

873 
873 
873 

874 
874 
874 
875 
875 
876 
876 
876 
876 
876 
877 
877 
877 
877 
877 
878 
878 


878 


STATUTES,  WITH  NOTES  OF  DECISIONS  THEREON. 


Trustee  Act,  1850,  . 
Trustee  Extension  Act,  1852, 


903 


APPENDIX. 


No.  I.  Strode  v.  Winchester, 

II.  Abbot  V.  Lee,      .... 

III.  Cogan  V.  Stevens, 

IV.  Appointment  of  new  Trustee  of  Stock, 
V.  Appointment  of  new  Trustee  of  Chattels, 

YI.  Appointment  of  new  Trustee  of  Freeholds  (single  deed, 

VII.  Appointment  of  Xew  Trustee  of  Freeholds  (two  deeds,) 

VIII.  Sands  v.  Nugee,  .  .  .  .  . 

IX.  Cases  on  Gifts  to  Relations,        .  .  .  . 

X.  Allen  v.  Saver,  ...... 


909 
909 
911 
922 
923 
924 
925 
927 
929 
931 


TABLE  OF  CASES. 


The  pages  referred  to  are  those  between  brackets  [ 


Abbot  V.  Gibbs,  435. 

V.  Lee,  189,  797,  806. 

Abington's  case,  675,  677. 
Abney  v.  Miller,  217. 
Acherley  v.  Acherley,  60. 

T.  Roe,  752. 

Acheson  v.  Fair,  220. 
Ackland  v.  Lutby,  251,  255,  256. 
Ackroyd  v.  Smithson,  182,  183, 
Acland  v.  Gaisford,  174,  175. 
Acton  V.  Peirce,  661,  685. 

Y.  White,  123. 

V.  Woodgate,  476,  481,  482. 

Adair  v.  Shaw,  725,  766,  873. 

V.  New  River  Compan}-,  851. 

Adams  v.  Adams,  252,  254,"^  259. 

V.  Broke,  419. 

v.  Buckknd.  300. 

V.  Claxton,  332. 

V.  Clifton,  290,  472,  778,  875. 

V.  Gale,  360. 

T.  Paynter,  577,  650. 

V.  St.  Leger,  840,  849. 

V.  Taunton,  237,  449,  533. 

Adamson  v.  Armitage,  121. 

Adey  v.  Arnold,  239. 

Adye    v.    Feuilleteau    or   Fennilitteau, 

337,  338,  341,  360,  361. 
Adlington  v.  Gann,  56,  57,  61,  62,  66, 

67,  68,  71,  79,  615. 
Agar  V.  Fairfax,  755. 
Aggas  V.  Pickerell,  731,  734. 
Aguilar  v.  Aguilar,  635,  639. 
Alcock  V.  Sloper,  354,  811, 
Alden  V.  Gregoi'y,  734, 
Alderman  v.  Neate,  106,  107. 
Alderson  v.  Temple,  477,  480. 
Aldridge  v.  Westbrooke,  584,  858. 
Alexander  v.  Alexander,  296. 

V.  Crosbie,  427,  656. 

V.  Duke  of  Wellington,  25,  101. 

V.  Newman,  137. 

V.  Mullins,  850. 

Alison's  case,  71. 


Allam  V.  Heber,  488. 

Allan  V.  Backhouse,  389,  393,  401. 

Allason  v.  Spark,  106,  107. 

Allen's  will,  in  re,  379. 

Allen  V.  Allen,  37,  603. 

V.  Imlett,  19,  20,  269, 

V.  Papworth,  633. 

V.  Sayer,  720. 

Alleyne  v.  Darcy,  226,  358,  562,  766. 

Altham  v.  Anglesey,  7. 

Alven  V.  Bond,  465. 

Amand  v.  Bradburne,  558. 

Ambrose  v.  Ambrose,  63,  200,  204. 

Ames  V.  Parkinson,  330,  341,  346,  356. 

Amhurst  v.  Dawling,  269. 

Amler  v.  Amler,  806. 

Amphlett  v.  Parke,  181,  183,  196,  197. 

Anandale  (Marquis  of)  v.  Marchioness 

of  Anandale,  827,  828. 
Anderson,  ex  parte,  583,  835. 

in  re,  580,  583,  713,  838. 

V.  Stather,  842. 

Andrew  v.  Trinity  Hall,  Camb.,  233. 

V.   Wrigley,   454,   455,   456,   460, 

726,  730. 

Andrews,  ex  parte,  318,  325,  332,  516. 

V.  Brown,  484. 

V.  Bousfield,  605. 

V.  Partington,  517. 

Angelo,  re,  881,  882. 

Angell  V.  Dawson,  352,  513,  523. 

V.  Draper,  648. 

Angerstein  v.  Martin,  346,  814. 
Angler  v.  Stannard,  367,  595,  596. 
Angle,  ex  parte,  767. 
Angus  V.  Angus,  47. 
Annand  v.  Honeywood,  797. 
Annesley,  ex  parte,  106,  107. 

v.  Ashurst,  524. 

V.  Simeon,  591. 

Anonymous  case  (Keilway,)  3. 

(Jenkyns,  244,  c.  3o',)  5. 

(1  P.  W.  445,)  12. 

(2  Sim.  N.  S.  71,)  2&. 


LEWIX  ON  THE  LAW  OF  TRUSTS,  ETC. 


xliv 

Anonymous  case,  (2  Vent.  349,)  105 

(7  Vin.  96,)  122. 

(8  Vin.  Ab.  72,)  169. 

(1  Com.  345,)  181,  195. 

(2  Vent.  361,)  200. 

(Carth.  16,)  201. 

2  Ch.  Ca.  207,)  217. 

(4  Leon.  207,)  235. 

(Mos.  36,)  291. 

(12  Mod.  560,)  295,  302. 

(Mos.  35,)  305. 

(Dyer,  210  a,)  310. 

(1  Salk.  155,)  318. 

(3  Ves.  515,)  319. 

Lofft.  492,)  337. 

(2  Ves.  630,)  361, 

. (6  Mad.  10,)  414,  423. 

(1  Salk.  153,)  423. 

(Mos.  96,)  434,  435. 

(Pr.  Ch.  434,)  456,  459. 

(2  Russ.  350,)  465. 

(6  Ves.  632,)  471. 

(2  Vern.  133,)  487. 

(2  Ch.  Ca.  54,)  488. 

(1  Salk.  154,)  491. 

(2  S\v.  300,  302,)  504. 

(10  Ves.  104,)  524. 

(10  Ves.  103.)  546. 

(2  P.  W.  261,)  616. 

(18  Ves.  258,)  642. 

(1  P.  W.  445,)  648. 

(2  Moll.  483,)  659. 

(2  Atk.  223,)  677. 

(1  Roll.  Rep.  56,)  685. 

(2  Vent.  349,)  693. 

(1  P.  W.  327,)  698. 

(4  Ir.  Eq.  Rep.  700,)  710. 

(6  Mad.  10,)  723. 

(6  Ves.  632,)  738. 

(Sel.  Ch.  Ca.  57,)  754,  762. 

(1  Vern.  105,)  755. 

(1  Salk.  126,)  758. 

(2  Freem.  114,)  828. 

(1  Ves.  jun.  462,  and  3  B.  C.  C. 

515,)  829. 

(3  P.  W.  389,)  832. 

(5  Sim.  322,)  835. 

(1  Y.  &  C.  75,)  839. 

(1  Y.  &C.  538,)  858. 

(4  Sim.  359,)  867. 

(12  Ves.  4,)  870,  871. 

(12  Ves.  5,)  870. 

Anthony  v.  Rees,  247,  250. 

Antrim  (Lord)  v.  Duke  of  Buckingham, 
34. 

Antrobus  v.  Smith,  85,  97,  99. 

Aplyn  V.  Brewer,  305,  310. 

Appleyard  v.  Wood,  45,  616. 

Archer  v.  Rooke,  121,  125. 

Ardill  V.  Savage,  583. 

Arglasse  v.  Muschamp,  48. 

Armstrong  v.  Peirse,  590. 

V.  Walker,  659. 

Arnold  v.  Chapman,  182,  193,  194. 


Arnold  V.  Garner,  319,  546. 

Arran  v.  Tyrawley,  734. 

Arthur  T.  Arthur,  121,  643. 

Asby  V.  Doyl,  173. 

Ashburnham   v.   Thompson,  3o9,  8i5, 

878. 
Ashburton  v.  Ashburton,  829. 
Ashby  V.  Ashby,  628. 

V.  Blackwell,  372. 

V.  Palmer,  807,  816,  823. 

Ashton  T.  Ashton,  156. 

V.  M'Dougall,  131. 

Aston  T.  Aston,  643,  644. 
Atcherley  v.  Vernon,  122,  250. 
Atkins  T.  Rowe,  205. 
Atkinson,  re,  607. 
Atkyns  v.  Wright,  170. 
Attorney-General  v.  Alford,  361,  362, 
376,  377. 

V.  Andrew,  659,  665. 

r.  Andrews,  516,  616. 

V.  Arnold,  198. 

T.  Aspinall,  23,  25,  31. 

V.  Backhouse,  508,  509,  510. 

T.  Baliol  College,  511,  850. 

V.  Corporation  of  Bedford,  493. 

V.  Corporation  of  Berwick-upon- 
Tweed,  790. 

T.  Black,  495. 

V.  Blizard,  106,  496. 

V.  Boulden,  178. 

T.  Bovill,  105,  496. 

V.  Brandreth,  496. 

V.  Master  of  Brentwood  School, 

502. 

V.  Brettingham,  503,  790. 

V.  Brewers'    Company,  753,  786, 

788,  877. 

T.  Brickdale,  298. 

T.  Corporation  of  Bristol,  781. 

V.  Mayor  of  Bristol,  198,  199. 

Y.  Brooke,  503,  507,  508,  509. 

V.  Browne's  Hospital,  493. 

Y.  Brown,  846. 

y.  Buckland,  698. 

V.  Buller,  263,  503. 

T.  Caius  College,  31,  199,  500,  712, 

790,  876. 
V.  Corporation  of  Carlisle,  790. 
v.  Master  of  Catherine  Ilall,  Cam- 
bridge, 198,  492,  507. 

T.  Dean  of  Christchurch,  499,  502, 

790. 

V.  Christ's  Hospital,  199,  730,  735, 

790, 878. 

V.  Clack,  524,  544,  582. 

V.  Clapham,  497. 

V.  Clare  Hall,  494. 

V.  Earl  of  Clarendon,  31,  462,  493, 

495,  505. 

V.  Coopers'  Company,  198,  712. 

V.  Cordwainers'  Company, 

T.  Mayor  of  Coventry,  198. 

V.  Cowper,  711. 


TABLE    OF    CASES. 


xlv 


Attorney-General  v.  Crook,  492,  510. 

V.  St.  Cross  Hospital,  493. 

V.  Cross,  506,  508,  509. 

V.  Cuming,  107,  298,  300,  712,  777, 

779,  857,  874,  301,  527. 

T.  Davy,  109. 

T.  Day,  504,  511. 

V.  Dew,  854. 

V.  Dixie,  332,  493,  495,  500,  505. 

506,  507,  508. 

V.  Lady  Downing,  693,  694,  696. 

V.  Doyley,  233. 

V.  Drapers'  Company,   199,   789, 

790,  876,  878. 

V.  Drummond,  876. 

V.  Lord  Dudley,  461,  466,  469,  470, 

738. 

V.  Dulwich  College,  493. 

V.  Duplessis,  71. 

V.  Corporation  of  Exeter,  105,  496, 

790. 
V.  Mayor  of  Exeter,  717,  729,  731, 

739,  786,  787,  788,  790. 

V.  Fishmongers'  Company,  730. 

T.  Flint,  745. 

y.  Floyer,  301,  527,  580,  751. 

V.  Foley,  107. 

V.  Foord,  506,  510. 

V.  Forster,  107,  108,  109,  269,  779. 

v.Tlie  Foundling  Hospital,  31,493, 

723. 

V.  Foyster,  502. 

V.  Gascoigne,  199,  500. 

V.  Gaunt,  492. 

V.  Gibson,  505. 

V.  Glegg,  22,  297,  299,  300,  543. 

v.  Goldsmiths'  Company,  495. 

V.  Lord  Gore,  585. 

V.  Lord  Gower,  506. 

V.  Green,  503,  508,  511,  782. 

V.  Greenhouse,  766. 

V.  Griffith,  507,  509. 

V.  Haberdashers'  Company,  198, 

500,  783. 

V.  Hall,  169,  171,  509. 

V.  Governors  of  Harrow  School, 

538,  544. 

V.  Heelis,  23,  851,  852. 

V.  Herrick,  198. 

V.  Hickman,  696. 

V.  Higham,  328,  338. 

V.  Hobert,  875. 

V.  Holland,  317,  502. 

V.  Lord  Hotham,  509. 

V.  Hungerford,  503. 

V.  Hurst,  713. 

V.  Jackson,  500. 

V.  Johnson,  198,  199. 

V.  Johnstone,  196,  197. 

V.  Kell,  496. 

V.  Kerr,  503,  509,  511. 

V.  Ladyman,  500. 

V.  Landerfield,  31. 

V.  Duke  of  Leeds,  283,  285. 

January,  1858.- 


Attorney-General  V.  Corporation  of  Lei- 
cester, 226,  227,  562,  763,  853. 

V.  Lewin,  106. 

V.  Corporation  of  Lichfield,  31. 

V.  Bishop  of  Lichfield,  300,  301, 

527,  580. 

V.  Mayor  of  Liverpool,  723. 

V.  Lock,  301,  492,  493. 

V.  Lockley,  57. 

V.  City  of  London,  873. 

V.  Corporation  of  London,  31. 

V.  Magdalen  College,  Oxford,  493. 

V.  Magdalen  College,  503,  722,  745, 

749. 

V.  Magwood,  506. 

V.  Earl  of  Mansfield,  496,499,  500, 

504. 

V.  Mercers'  Company,  502. 

V.  Merchant  Venturers'   Society, 

199. 

V.  Middleton,  493. 

V.  Milner,  190. 

V.  Minshnll,  158. 

V.  Moor,  735. 

V.  Morgan,  506. 

V.  Munby,  132. 

V.  Munro,  325,  498. 

V.  Murdoch,  497. 

V.  Newark,  503,  791. 

V.  Newbury,  789,  790. 

V.  Newbury  Corporation,  495,  717, 

789,  845. 

V.  Newcombe,  107,  108,  269,  779. 

V.  Mayor  of  Norwich,  557,  559. 

•  V.  Corporation  of  Norwich,  516. 

V.  Owen,  507,  508,  509,  510,  523. 

V.  Pargeter,  503,  508. 

V.  Parker,  108,  109,  269,  779. 

V.  Parnther,  644. 

V.  Pearson,  131. 497,  498,  499.  559, 

577,  711,  853. 

V.  Persse,  746,  750. 

V.  Pomfret,  833. 

V.  Borough  of  Poole,  31. 

V.  Poulden,  113,  114,  118. 

V.  Pretyman,  790. 

V.  Price,  706. 

V.  Randall,  306,  332. 

V.  Randies,  836. 

V.  East  Retford  Grammar  School, 

781. 
V.  Burgesses  of  East  Retford,  764, 

790,  791,  878. 
V.  Rigby,  790. 

V.  Mayor  of  Rochester,  511. 

V.  Rutter,  109. 

V.  Sands,  2,  43,  103, 131,  321,  673, 

674,  676,  677,  678,  681,  682. 
V.  Scott,  22,  57, 107,  247,  297,  527, 

621,  625,  777. 

V.  Shearman,  298. 

V.  Sherborne  School,  495. 

V.  Shore,  711. 

V.  Corporation  of  Shrewsbury,  23. 


LEWIN  OX  THE  LAW  OF  TRUSTS,  ETC. 


Attorney-General  v.  Smythies,  199. 

V.  Solly,  363,  3G4. 

V.  Guardians  of  Poor  of  South- 
ampton, 51G. 

V.  Corporation    of   Southiuolton, 

199. 

V.  South  Sea  Company,  503,  515. 

V.  Sparks,  198. 

V.  Corporation  of  Stafford,  T88. 

V.  Mayor  of  Stamford,   31,   500, 

501,505,  50G,  507,  711,  783. 

V.  Stephens,  693,  696. 

V.  Vivian,  496,  779. 

T.  Warren,  503,  504,  507,  508. 

V.  Whiteley,  499. 

V.  Whorwood,  10,  31. 

V.  Wilkinson,  105. 

v.  Wilson,  25,  177,  198,  504,  767, 

768,  845,  846,  847,  875. 

V.  Bishop  of  Worcester,  782. 

V.  Archbishop  of  York,  492. 

Austen  t.  Taylor,   141,   142,   144,   145, 
158,  246. 

Austin  V.  The  Bank  of  England,  33. 

Aveling  v.  Knipe,  200,  201,  202. 

Averall  v.  Wade,  52. 

Avery  v.  Osborne,  877. 

Awdley  v.  Awdley,  18,  828,  830. 

Ayles  V.  Cox,  893,  896,  903. 

Ayliff  V.  Murray,  460,  463,  545,  552. 

Avlwyn  v.  Bray,  777. 

Aynsworth  v.  The  Bank,  33. 

Babington's  case,  673. 
Back  v.  Andrews,  210,  216. 

V.  Gooch,  478,  479. 

Backhouse  v.  Backhouse,  693. 

V.  Middleton,  725. 

Bacon  v.  Bacon,  284,  293. 

Y.  Proctor,  111. 

Badcock,  in  re,  828. 
Badcocke,  ex  parte,  462,  465. 
Baden  v.  Earl  of  Pembroke,  796. 
Bage,  ex  parte,  465. 
Baggett  v.  Meux,  44,  645. 
Bagshaw  v.  Spencer,  142,  153,  156,  247, 
251,  256. 

v.  Winter,  369,  370. 

Bailey,  ex  parte,  477. 

V.  Ekins,  238,  441,  443,  488. 

T,  Gould,  328,  329,  332,  877. 

V.  Jackson,  633,  635. 

Bain  v.  Lescher,  122. 
Bainbridge  v.  Lord  Ashburton,  264. 
Bainbrigge  v.  Blair,  320,  549,  554,  555, 
711,  870,  871. 

v.  Burton,  852. 

Baker,  ex  parte,  826. 

V.  Carter,  460,  465,  470,  774,  875. 

V.  Hall,  194. 

T.Martin,  551. 

V.  Ptead,  470. 

Balch  V.  Wastall,  648. 

Balchen  v.  Scott.  240,  291. 


Biildock,  ex  parte,  424. 
Baldwin  v.  Baldwin,  628. 

Y.  Banister,  319. 

Bale  V.  Coleman,  141,  144,  146,  256. 
Balfour  v.  Welland,  432,  433,  436. 
Bah'-ney  v.  Hamilton,  206,  756. 
Balf  V.  Harris,  416,  440,  441,  442,  454. 

. V.  Montgomery,  878. 

Ballet  V.  Sprainger,  395. 

Balls  V.  Strutt,  723. 

Balsh  v.  Hyham,  522,  559,  562. 

V.  Wastall,  12. 

Bamford  v.  Baron,  479. 

Banbury  v.  Briscoe,  227. 

Band  v.  Fardell,  352,  353. 

Bangley's  Trust,  381. 

Bank  of  England  v.  Lunn,  32,  33. 

V.  Moffatt,  32,  33. 

V.  Parsons,  32,  33. 

Bankes  v.  Le  Despencer,  157,  538. 

V.  Sutton,  621,  625,  680,  794,  795. 

Barber,  ex  parte,  265. 

v.  Barber,  735. 

Barclay  v.  Raine,  227. 

V.  Russell,  198,  325. 

Bardswell  v.  Bardswell,  168,  170. 
Barff,  ex  parte,  771. 
Barfield  v.  Rogers,  836. 
Barker  v.  Boucher,  489. 

v.  Greenwood,  247,  248. 

V.  Duke  of  Devonshire,  435. 

Y.  Lea,  369. 

v.  May,  20,  688. 

Barklcy  v.  Reay,  Lord,  871. 

Barlow  v.  Grant,  517,  518. 

Barnard  v.  Heaton,  397. 

Y.  Hunter,  729. 

v.  Large,  408,  409,  410,  411. 

Y.  Proby,  145. 

Barnardiston  v.  Soame,  20. 

Barnes  v.  Crow,  591. 

Barnwall  v.   Barnwall,  660,   663,   664, 
754,  755. 

Barnwell  v;  Barnwell,  658. 

Barret  v.  Glubb,  269. 

Barrett  v.  Buck,  118,  177. 

Barrington  v.  Hereford,  194. 

Y.  Liddle,  119,  120. 

Barrow  v.  Greenough,  70. 

Barry,  in  re,  835. 

\\  Marriott,  343,  346. 

Y.  Woodhara,  858. 

Bartholomew's  Trust,  m  re,  380. 

Barthrop  v.  West,  681. 

Bartlett  v.  Bartlett,  865. 

V.  Green,  149. 

V.  Pickersgill,  200,  204,  205. 

Bartley  v.  Bartley,  450,  533. 

Barton  v.  Briscoe,  130,  631. 

Barwell  v.  Parker,  489,  490,  491. 

Baskerville  v.  Baskerville,  144,  156. 

Basset's  (Sir  W.)  case,  184. 

V.  Clapham,  408. 

I   Bastard  v.  Proby,  156. 


TABLE    OF    CASES. 


xlvii 


Bate  V.  Hooper,  340,  353,  373. 

V.  Scales,  356. 

Bateman  v.  Davis,  340,  '774,  777. 

V.  Hotchkin,  111,  119,  238. 

V.  Margerison,  491,  852. 

Bates  V.  Dandy,  631. 

Bath  (Earl  of)  t.  Abney,  272. 

V.  Earl  of  Bradford,  414,  489,  491, 

513,  820. 
Batson  v.  Lindegreen,  488. 
Batteley  v.  Windle,  180. 
Battersby's  Trust,  895. 
Battier,  ex  parte,  269. 
Baugh  V.  Price,  466,  472. 
Baugham,  ex  parte,  380. 
Baxter  v.  Pritchard,  478. 
Baxter's  Will,  891. 
Bayley  v.  Boulcott,  56,  61. 

v.  Mansell,  713. 

V.  Powell,  184,  878. 

B.aylies  v.  Baylies,  589. 

Baylis  v.  Newton,  177,  214. 

Bayly  v.  Gumming,  237,  533. 

Baynard  v.  Wolley,  768,  851. 

Baynes  v.  Baynes,  839. 

Beale  v.  Symonds,  285,  322,  679. 

Beales  v.  Spencer,  122. 

Bean  v.  Sykes,  372. 

Beanland  v.  Halliwell,  813. 

Beard  v.  Nutthall,  94. 

Beatson  v.  Beatson,  91. 

Beatty  v.  Johnstone,  847. 

Beauclerk  v.  Ashburnham,  349,  542. 

Beaumont  v.  Beaumont,  869. 

V.  Meredith,  866. 

V.  Salisbury  (Marquis,)  253. 

Beavan  v.  Lord  Oxford,  280,  666,  668, 

672. 
Beckett  v.  Cordley,  39. 
Beckford  v.  Beckford,  215,  216. 

V.  Close,  734. 

V.  Wade,  730,  731. 

Bedford  (Duke  of)  v.  Marquis  of  Aber- 
corn,  164,  165. 

Charity,  in  re,  493,  780. 

V.  Leigh,  658. 

T.  Woodham,  456. 

Bedwell  v.  Froome,  207. 
Beech  v.  Keep,  81,  84. 

V.  St.  Vincent,  119. 

Beer  (in  the  goods  of,)  234. 

Beere  v.  Head,  669. 

Begbie  v.  Crook,  236. 

Beilby,  ex  parte,  123,  773. 

Belch  V.  Harvey,  731. 

Belchier,  ex  parte,  293,  295,  305,  310, 

332,  422. 
Belke's  Charity,  718. 
Bell  V.  Bell,  721,  724,   725,  729,   730, 

733. 
Bell  V.  Hyde,  34. 
Bellamy,  ex  parte,  833. 

V.  IBurrow,  63. 

Bellasis  v.  Compton,  56,  61. 


Bellingham  v.  Lowther,  98. 
Beloved  Wilkes's  Charity,  in  re,  543. 
Benbow  v.  Townsend,  56,  61,  207. 
Benn  v.  Dixon,  808. 
Bennet,  ex  parte,  136,  476. 

v.  Box,  682,  683. 

V.  Davis,  121,  173,  260,  276,  279, 

623,  624,  694. 

V.  Going,  873. 

V.  Mayhew,  758. 

V.  Whitehead,  755. 

Bennett  v.  Attkins,  873,  876. 

V.  Burgis,  244. 

ex  parte,  460,  461,  462,  463,  465, 

466,  467. 
V.  Oolley,  392,  395,  402,  722,  729, 

737,  778. 

V.  Honeywood,  542,  706. 

V.  Powell,  648,  652,  663. 

Benson  v.  Benson,  125,  130,  238,  631, 

820,  822. 

V.  Whittam,  172. 

Bentham  v.  Wiltshire,  445. 
Bentley  v.  Craven,  225,  318. 

V.  Mackay,  63,  83. 

Berkhampstead  Free  School,  ex  parte, 

493,  543,  782. 
Berriugton  v.  Evans,  661. 
Berry  v.  Usher,  183,  195,  196. 
Bessey  v.  Windham,  478. 
Bethune  v.  Kennedy,  354,  810,  812. 
Bevan's  case,  827. 
Bevant  v.  Pope,  260. 
Beveridge,  ex  parte,  715. 
Beverley  v.  Beverley,  603. 
Beynon  v.  Gollins,  435. 
Bick  V.  Motly,  315,  362,  771,  772. 
Bickham  v.  Freeman,  489. 
Bicknell  v.  Gough,  734. 
Biddulph,  ex  parte,  772. 

V.  Biddulph,  796. 

Bifieldv.  Taylor,  841,  844. 
Biggs,  in  re,  376. 

V.  Andrews,  807. 

V.  Penn,  854. 

Bignold  V.  Springfield,  782. 
Bill  V.  Cureton,  93. 
Billing  V.Webb,  837. 
Billingsley  v.  Mathew,  300. 
Billingsly  v.  Critchet,  518. 
Binford  v.  Bawden,  817. 
Bingham  v.  Glanmorris,  236. 

V.  Woodgate,  284,  616. 

Bingley  School,  in  re,  785. 

Binion  v.  Stone,  209. 

Biuks  V.  Lord  Rokeby,  427,  431,  435. 

Birch  V.  Blagrave,  178,  215. 

V.  Cropper,  575. 

V.  Wade,  167,  703,  704. 

Bird  V.  Johnson,  132. 

V.  Lockey,  351,  361. 

V.  Peagrum,  642. 

Birls  V.  Betty,  767. 
Birmingham  School,  in  re,  492. 


xlviii 


LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 


Biscoe  v.  Kennedy,  634.  „„   ,,„ 

V.  Perkins,  247, 405, 408,  409,  410, 

411. 
Bishop  V.  Colebrook,  3T2. 

V.  Talbot,  G8. 

Black  V.  Creighton,  866. 

Blackburn  v.  Stables,  147,  153,  154. 

Blackburne,  ex  parte,  536. 

Blacklow  V.  Laws,  122. 

Blackston  v.  Hemsworth  Hospital,  502. 

Blackwood  v.  Borrowes,  317,  338,  419, 

773,777. 
Blagrave  v.  Blossom,  258. 
Blair  v.  Bromley,  734. 

V.  Ormond,  742. 

T.  Nugent,  745. 

Blake  v.  Bunbury,  586. 

V.  Foster,  733. 

Blakely  v.  Brady,  87. 
Bland  v.  Bland,  169,  171. 

T.  Wilkins,  193. 

Blann  V.Bell,  810,  813. 
Blatch  V.  Wilder,  173,  488. 
Blennerhassett  v.  Day,  423,  734. 
Blewitt  v.  MiUett,  220,  224. 

V.  Thomas,  734. 

Blinkhorne  v.  Feast,  39. 

Bliss  T.  Bridgwater,  238. 

Blithe's  case,  34,  526. 

Blomfield  v.  Eyre,  753. 

Blove's  Trust,  in  re,  379,  380,  460,  461, 

462. 
Blue  V.  Marshall,  521. 
Boardman  v.  Mosman,  317. 
Boddv  V.  Esdaile,  274,  275. 
Bodeaham  v.  Hoskyns,  227,  459,  562. 
Boden's  Trust,  in  re,  888. 
Bold  v.  Hutchinson,  149. 
Bolton  V.  Bolton,  97,  99. 

(Duke  of)  v.  Deane,  754,  755. 

V.  Williams,  634,  635,  639. 

Bond  V.  Hopkins,  732. 

V.  Nurse,  19. 

Bone  V.  Cook,  306,  317. 

Bonham  v.  Newcomb,  97. 

Bonifant  v.  Greenfield,  235,  236,  237. 

Bonithon  v.  Hockmore,  545,  546,  556. 

Bonner  v.  Bonner,  370. 

Bonney  v.  Ridgard,  453,  454,  455,  457 

460,  730,  731. 
Booth,  ez  parte,  290. 

V.  Booth,  239,  240,  290,  317,  768 

774. 

V.  Warrington,  734. 

Boreham  v.  Bignall,  368. 

Bosanquet,  ex  parte,  835. 

Boschetti  v.  Power,  866. 

Boson  V.  Statham,  56,  61,  67,  68,  74,  80 

Boss  V.  Godsall,  339. 

Bostock  V.  Blakeney,  356,  512,  514. 

BoSvil  V.  Brander,  628. 

Bosworth  V.  Forard,  251. 

Boteler  v.  AUington,  16. 

Bothomly  V.  Lord  Fairfax,  489,  621. 


Boughton  V.  James,  111. 

V.  Langley,  248. 

Boulton  T.  Beard,  366. 
Bourne  v.  Buckton,  118,  119. 

V.  Bourne,  808. 

V.  Mole,  867. 

Bovey  v.  Smith,  725,  726,  727. 
Bowater  v.  Elly,  603. 
Bowden  v.  Bowden,  810. 
Bowes,  ex  parte,  263,  264,  835. 
V.  East  London  Waterworks'  Com- 
pany, 522,  752,  778. 

V.  Earl  of  Shaftesbury,  805. 

Bowker  v.  Burdekin,  477,  479. 
Bowles  V.  Rogers,  277. 

T.  Stewart,  223,  224,  778. 

V.  Weeks,  713. 

3owj-er  v.  Rivitt,  659. 
Bowra  v.  Wright,  694. 
Box  V.  Box,  372. 

V.  Jackson,  629. 

Boyce  v.  Corbally,  533. 
Brace  v.  Duchess  of  Marlborough,  280. 
Brackenbury  v.  Brackenbury,  138. 
Bradburne,  in  re,  837. 
Bradford  v.  Belfield,  296,  297. 
Bradgate  v.  Ridlington,  487. 
Bradish  v.  Gee,  823,  824. 
Bradshaw,  ez  parte,  890. 

v.  Bradshaw,  300. 

V.  Fane,  417. 

Bradwell  v.  Catchpole,  304,  726. 
Brandlyn  v.  Ord,  726. 
Brandon  t,  Aston,  136,  520. 

v.  Robinson,  132. 

Brasier  v.  Hudson,  431. 

Brassey  v.  Chalmers,  417,  530,  533. 

Bray,  ex  parte,  557. 

1  Y_  West   235. 

Braybr'oke  (Lord)  v.  Inskip,  262,  263, 
264,  449. 

Brearcliff  T.  Dorrington,  614. 

Breedon  v.  Breedon,  432. 

Brest  V.  Offley,  167. 

Brett  V.  Greenwell,  369. 

Brettell,  ez  parte,  263,  264. 

Brewer  v.  Swirles,  640,  775. 

Brewster  v.  Angell,  164,  165,  166. 

Brice  v.  Stokes,  304,  305,  306,  311,  312, 
316,  317,  774,  775. 

Bridgenorth  (Corporation  of)  v.  Collins, 
116. 

Bridge  V.  Bridge,  65,  81,  83,  84,89,94. 

V.  Brown,  513,  517,  557. 

Bridger  v.  Rice,  415. 

Bridgett  v.  Hames,  851. 

Briggs  V.  Chamberlain,  818. 

V.  Oxford  (Earl  of),  112. 

V.  Penny,  68,  78,  168,  169,  173. 

Bright  V.  North,  516,  559. 

Brighfs  Trust,  in  re,  613. 

Bristed  v.  Wilkins,  67 1. 

Bristol  (Countess    of)   v.   Hungerford, 
183,  184. 


TABLE    OF    CASES. 


XllX 


Bristow  V.  Pegge,  590. 
Britten  v.  Cole,  647. 
Britton  v.  Twining,  142. 
Broadhurst  v.  Balguy,  306,  lib,  778. 
^Brocksopp  v.  Barnes,  545,  549,  553. 
Brodie  v.  Barry,  643,  869. 

V.  St.  Paul,  872. 

Bromfield,  ez parte,  826,  827,  828,  829, 

830. 

V.  Wytherley,  360. 

Bromley  v.  Holland,  842,  848. 

V.  Lingard,  773. 

V.  Smith,  851. 

Brook  V.  Brook,  35. 

(Earl)  Y.  Bulkeley,  725. 

Brookes  v.  Burt,  848. 
Brookman  v.  Hales,  182,  218. 

V.  Rothschild,  225. 

Brooksbank  v.  Smith,  733. 
Broom  v.  Broom,  839. 

V.  Summers,  497. 

Brougham   (Lord)    v.   Poulett  (Lord), 

564. 
Broughton  v.  Broughton,  320,  549,  550. 

V.  James,  641. 

V.  Langley,  246. 

Browell  v.  Read,  237,  424,  869,  871. 
Brown,  ex  parte,  781. 

V.  Bamford,  129. 

V.  Bigg,  196. 

V.  Brown,  713. 

V.  Dawson,  498. 

V.  De  Tastet,  548. 

V.  Groombridge,  564. 

v.  Higgs,  168,   197,  526,  695,  696, 

701,  702,  703,  706,  708,  709. 

V.  How,  585,  875. 

V.  Jones,  182,  191. 

v.  Like,  123, 

T.  Litton,  343,  360,  361,  548. 

V.  Pocock,  124,  128,  701,  704. 

V.  Raindle,  260. 

T.  Sansome,  361,  364. 

V.  Wuiteway,  255. 

Browne  v.  Blount,  849. 

V.  Cavendish,  481,  482,  483,  653. 

v.  Cross,  742,  776. 

T.  DeLaet,  189. 

T.  Elton,  628. 

V.  Lockhart,  857. 

V.  Southouse,  359,  361. 

T.  Stoughton,  111. 

Brudenell  v.  Boughton,  65. 
Bruere  v.  Pemberton,  359. 
Brummell  v.  Macpherson,  42. 
Brunsden  v.  Woolredge,  542,  699,  706, 
Byran  v.  Collins,  116. 

V.  Brydges,  142. 

Buchanan  v.  Hamilton,  710. 

Buck  V.  Shippam,  486. 

Buckeridge   v.   Glasse,   237,  711,   756, 

774,  775,  778. 

V.  Ingram,  393,  396. 

Buckingham  (Earl  ofj  v.  Drury,  39,  792. 


Buckle  T.  Mitchell,  93. 

Buckley's  Trust,  in  re,  375, 

Buckley  v.  Lanauze,  218. 

BufiFery,  ex  parte,  716. 

Bugden  v.  Bignold,  608. 

Buggins  V.  Yates,  169,  170,  180,  183. 

Bulkly  V.  Wilford,  226, 

Bull  T.  Birkbeck,  403. 

V.  Vardy,  172. 

Bullock  r.  Knight,  629, 

T.  Wheatley,  328. 

Bullpin  V.  Clarke,  634,  641. 
Bunnett  v.  Foster,  183,  851. 
Bunting,  in  re,  226. 
Burbridge.  ex  parte,  278. 
Burchett  v.  Durdant,  248, 
Burden  v.  Burden,  549. 
Burdett  v.  Rockey,  261. 

v.  Willet,  754. 

Burdon  v.  Burdon,  643. 
Burdon  v.  Kennedy,  649,  665. 
Burge  V.  Brutton,  320,  550. 
Burgess  V.  Wheate,   10,   11,  12,  13,  14. 

15,  30,  42,  43,  57,  103,  269,  270,  28o'. 

281,  282,  283,  284,  285,  318,  321,  322^ 

323,  593,  600,  615,  622,  625,  629,  675. 

677,  678,  680,  724,  725,  792,  795,  872'. 
Burgh  V.  Burgh,  280, 

v.  Francis,  279. 

Burke  v.  Jones,  484. 

Burn  V.  Carvalho,  92. 

Burney  t.  Macdonald,  43,  72,  132,  472. 

Burnie  v.  Getting,  342. 

Burntree  Building  Society,  in  re,  837. 

Burrell  v.  Egremont  (Lord),  733. 

Burridge  v.  Row,  771. 

Burrough  v.  Philcox,  703,  704. 

Burroughs  v.  Elton,  659. 

y.  M'Creight,  748. 

Burrowes  v.  Lock,  605. 
Burrows  v.  Greenwood.  875. 

V.  Walls,  599,  778. 

Burt,  re,  882,  901. 

T.  Dennet,  846, 

V.  Ingram,  339. 

V.  Sturt,  119,  120, 

Burting  v.  Stonard,  459. 
Burton,  ex  parte,  226,  768. 

V.  Hastings,  148,  149. 

V.  Hodsoll,  807. 

V.  Mount,  810. 

y.  Pierpoint,  121,  694. 

y.  Wookey,  546. 

Burtt's  Trust,  re,  297. 

Estate,  re,  534,  267,  533. 

Bush  T.  Allen,  250. 
Butcher  y.  Easto,  477. 
Butler  &  Baker's  case,  235,  236. 
Butler's  Trust,  re,  381. 
Butler,  ex  parte,  274. 

v.  Bray,  299,  536. 

V.  Portarlington,  63. 

V.  Prendergast,  842,  847. 

Buxton,  ex  parte,  423. 


LEAVIN    ON    THE    LAW    OF    TRUSTS,    ETC. 


1 

Buxton  V.  Buxton,  329,  415 
Byam  V.  Byam,  450,  533,  536   543 

Byrchall  v.  Bradford,  243,  764,  1U. 

Byrne,  re,  '713. 

__  T.  Frere,  TSS,  734,  738. 

Cadogan  v.  Earl  of  Essex,  349,  542. 

V.  Kennet,  594. 

Cafe  Y.  Bent,  524,  544,  582   812. 
Cafifrey  v.  Darby,   326,   557,  5o8,  766, 

875. 
Caillaud  v.  Estwick,  649. 
Caldecott  v.  Brown,  514. 

T.  Caldecott,  354,  814,  815. 

Callaghan  v.  Egan,  839. 
Callow  V.  Howie,  633,  634. 
Calvert  v.  Godfrey,  840. 
Calverley  v.  Phelp,  842. 
Cambridge  v.  Rous,  195,  197. 
Camden  v.  Anderson,  203. 
Camoys  (Lord)  v.  Best,  566,  578. 
Campbell  v.  Campbell,  547. 

V.  Ferrall,  662. 

V.  Graham,  739. 

V.  Home,  367,  595. 

V.  Walker,  421,  460,  461,  462,  464, 

465,  466,467,  468,  470,  471,  472,  473. 
Caney  v.  Bond,  328. 
Cann  v.  Cann,  472. 
Canning  v.  Hicks,  18. 
Cant,  ez parte,  901. 
Cantiey,  re,  264. 
Cape  V.  Cape,  122. 
Capel  V.  Wood,  384. 
Car  V.  Burlington,  489,  490,  491. 

V.  Ellison,  272,  816. 

Carbis,  exparte,  612,  613. 
Carew  v.  Johnston,  546. 
Carleton  t.  Earl  of  Dorset,  631. 
Carlisle  (Corporation  of)  v.  Wilson,  753 
Carlon  v.  Farlar,  662. 
Carmichael  v.  Wilson,  361,  517. 
Carpenter,  in  re,  882. 

V.  Carpenter,  603. 

V.  Heriot,  472. 

V.  Marnell,  274,  275,  276. 

Carr  v.  Bedford,  538,  707. 

V.  Ellison,  816. 

T.  Errol,  163. 

Carrick  v.  Errington,  182. 

Carsey  v.  Barsham,  305. 

Carter  v.  Barnardiston,  251,  428. 

V.  Home,  225,  318. 

V.  Taggart,  369,  370. 

V.  Waine,  474. 

Carteret  (Lord)  v.  Paschal,  630. 

(Lord)  V.  Petty,  50. 

Cartwright,  exparte,  714,  716. 
Carvill  v.  Carvill,  173. 
Carwardine  v.  Carwardine,  246. 
Cary  v.  Cary,  167,  168,  169. 
Casamajor  v.  Strode,  816. 
Casborne  v.  Scarfe,  262,  263,  264,  621, 
623,  680. 


Casburne  v.  Casburne,  U,  625. 
Casey's  Trust,  in  re,  136.     ^ 
Cathorpe,CT;?a7-<«,  343. 
Cator  V.  Croydon  Railway  Company,  .  63. 

Y.  Earl  of  Pembroke,  758. 

Cave  V.  Roberts,  325. 
Cavendish  v.  Mercer,  520. 
Cawkwell,  exparte,  479. 
Cawthorn,  in  re,  380. 
Cazneau's  Legacy,  378. 
Chadwick  v.  Heatley,  373. 

V.  Holt,  667. 

Challen  v.  Shippam,  357. 

Chalmer  v.  Bradley,  289,  470,  471,  472, 

729,  737,  819. 
Chaloner  v.  Butcher,  824. 
Chamberlain  v.  Agar,  71. 
Chamberlaine  v.  Chamberlaine,  70. 
Chambers,  exparte,  517. 
V.  Chambers,  149,  810. 

V.  Goldwin,  546,  556. 

v.Minchin,  290,  291,293,305,  311. 

312,  315. 

v.  Waters,  462. 

Champion,  ex  parte,  351. 

V.  Rigby,  470. 

Chancellor  y.  Morecraft,  851. 
Chandler,  in  re,  763. 
Chancey  v.  May,  851. 
Chase  v.  Goble,  477. 
Chaplin,  ex  parte,  342. 

V.  Chaplin,  57,  138,  178,  621,625. 

V.  Horner,  797,  798,  805,  819. 

Chapman  v.  Blisset,  104,  246,  247. 

V.  Gibson,  96. 

Charity  Corporation  v.  Sutton,  290,  545, 

846. 
Chastenev.  exparte,  833. 
Chedworth  v.  Edwards,  337,  756,  758. 
Chelmsford,  (Poor  of)  v.  Mildmay,  493. 
Chertsev  Market,   in  re,  317,  415,  493, 

723,  767,  777,  781,  783,  787,  845. 
Chester  v.  Piatt,  635. 

V.  Rolfe,  517,  774. 

Chesterfield   (Earl  of)  v.  Jansen,  471, 

472,  473,  778. 
Chetham  v.  Lord  Audley,  547. 
Chichester  v.  Bickerstaff,  800. 
Child  v.  Gibson,  360. 

V.  Stephens,  488. 

Chion,  ex  parte,  274,  754. 
Chipping-Sodbury  School,  in  re,  783. 
Chirton's  case,  673. 
Chitty  V.  Parker,  183,  184. 
Cholmondley  v.  Cholmondley,  168. 

(The  Marquis  of)  v.  Lord  Clinton, 

618,  730,  732,  733,  737. 
Christian  v.  Devereux,  744. 
Christophers  v.  White,  320. 
Christ's  Hospital  t.  Budgin,  177,  216. 

V.  Grainger,  23,  717. 

Christy  v.  Courtenay,  207,  209,  212,  214. 

215. 
Chumley,  ex  parte,  826. 


TABLE    OF    CASES. 


li 


Churchill  v.  Bank  of  England,  671. 

V.  Dibben,  645. 

V.  Lady  Hobson,  241,  291, 310,  313. 

V.  Marks,  136. 

City  of  London  v.  Garway,  182,  183. 

V.  Richmond,  851. 

Clack  V.  Holland,  329,  729,  764. 
Clapham  (Inhabitants  of)  v.  Hewer,  779. 
Clare  v.  Earl  of  Bedford,  39. 
Clare  v.  Ormond,  599. 

V.  Wood,  657. 

Clark  V.  Burgh,  629. 

V.  Cook,  630. 

Clarke's  Charity,  in  re,  781. 
Clarke  v.  Danvers,  199,  202,  216. 

V.  Earl  of  Ormonde,  428. 

V.  Parker,  533. 

V.  Pistor,  123. 

V.  Swaile,  464,  471. 

V.  Turner,  707. 

Clay  V.  Sharpe,  427. 

V.  Willis,  687,  688, 

Clegg  V.  Edmondson,  742. 
Clerk  V.  Miller,  633. 
Clerkson  v.  Bowyer,  18. 
Clifton  T.  Lombe,  168. 
Clinton  v.  Willes,  637. 

Clough  V.  Bond,  291,  293,  328,  337,  351, 
766. 

V.  Dixon,  314,  336,  357. 

Clowdsley  v.  Pellham,  167. 
Clowes  V.  Waters,  490,  491. 
Clutton,  ezparie,  40,  579. 
Coape  V.  Arnold,  142,  144,  146,  155. 
Cochrane  v.  Robinson,  426. 
Cock  V.  Goodfellow,  340,  480. 
Cockburn  v.  Thompson,  851. 
Cockell  V.  Pugh,  838,  839. 

V.  Taylor,  729. 

Cocker  v.  Quayle,  340,  596,  766,  774, 

775. 
Cockerell  v.  Cholmley,  472,  778. 
Cogan  V.  Stevens,  189. 
Coke's  case,  (Sir  E.)  646,  673. 
Colchester  v.  Lowten,  25. 
Cole  V.  Gibson,  472. 

V.  Moore,  615,  723,  724,  725. 

V.  Muddle,  771. 

V.  Wade,   22,  297,  526,  528,  530, 

533,  534,  580,  712. 
Colebrooke's    (Sir   George)    case,  464, 

473. 
Colegrave  v.  Manby,  392. 
Coles  V.  Trecothick,  460,  462,  463,  464, 
Collard  v.  Hare,  730. 
Collett  V.  Morrison,  137. 
Collingwood  v.  Pace,  677. 
Collins  V.  Archer,  753. 

V.  Carey,  320,  549. 

V.  Collins,  354,810. 

T.  Reece,  486. 

V.  Vining,  538,  542. 

V.  Wakeman,  182,  183,  195,  196. 

Collinson  v.  Collinson,  209,  214. 


Collinson  v.  Lister,  456,  563. 

V.  Patrick,  81,  91. 

Collis  V.  Collis,  338,  867. 
Colman  v.  Sarel,  84,  94,  97,  874. 
Colmore  v.  Tyndal,  253. 
Colston  V.  Lilley,  427. 

Colt  V.  Colt,  12,  621. 
Colwall  V.  Shadwell,  819. 
Commissioners  of  Charitable  Donations 
V.  Archbold,  710,  711. 

V.  Wybrants,  441,  443,  722,  726 

745,  746,  748,  749. 

Compton  V.  Bedford,  477,  480. 

V.  Collinson,  34,  35. 

V.  Compton,  658. 

(Lord)  V.  Oxenden,  798. 

Congreve,  exparte,  715. 
Coningham  v.  Mellish,  180. 

V.  Plunkett,  84. 

Conolly  V.  Parsons,  421,  424. 
Consett  V.  Bell,  101,  846. 
Conry  v.  Caulfield,  325,  845. 
Conyngham  v.  Conyngham,  243. 
Cook  V.  Arnham,  734,  752. 

V.  Duckenfield,  180. 

V.  Fountain,   173. 

V.  Fryer,  243. 

V.  Gregson,  688. 

V.  Gwavas,  179. 

V.  Hutchinson,  177,  180,  181. 

V.  Parsons,  513. 

Cooke,  ex  parte,  136. 

V.  Blake,  252. 

V.  Cholmondeley,  218. 

V.  Crawford,   237,   265,  266,  528, 

532,  533. 

V.  Stationers'  Company,  182,  190, 

193,  194,  195,  197. 

Cookson  V.  Cookson,  823,  824. 

V.  Reay,  806,  816. 

Coope  V.  Carter,  765. 
Cooper,  ex  parte,  613. 

V.  Douglas,  517. 

V.  Fynmore,  605. 

V.  Jones,  893. 

V.  Thornton,  596. 

V.  Wyatt,  135,  136. 

Cooper's  Trust,  in  re,  191,  193,  808. 
Cooth  V.  Jackson,  205. 

Cope  T.  Parry,  842. 
Copeman  v.  Gallant,  274,  275,  277,  278. 
Copper  Mining  Company  v.  Beach,  425. 
Copperthwaite  v.  Tuite,  633. 
Coppin  V.  Fernyhough,  218,   222,  224. 
384,  397,  398,  729. 

V.  Gray,  634. 

Corbett  v.  Barker,  733. 
Cordal's  case,  251. 
Corder  v.  Morgan,  427. 
Cordwell  v.  Mackrill,  727,  728. 
Corubury  (Lord)  v.  Middleton,  12,  600, 

615. 
Cornish  v.  Mew,  395. 
Cornthwaite  v.  Frith,  481,  482. 


lii 


L  E  W I N 


ON    THE    LAW    OF    TRUSTS,    ETC. 


Cory  V.  Gertcken,  39.  | 

Corrton  v.  Helyar,  8. 
Costeker  v.  Horrox,  8G7. 
Gotham  v.  West,  517. 
Gotteen  v.  Missing,  81,  91. 
Gotterell  v.  Purchase,  734. 
GottinErham  v.  Shrewsbury,  845. 
Cottington  V.  Fletcher,  62,  63, 137,  178, 

179. 
Gotton  V.  Clark,  877. 
Court  V.  Jeffery,  458,  849. 
Courtenay  v.  Courtenay,  583. 
Courthorpe  v.  Heymau,  12,  600. 
Courtois,  in  re,  378. 
Gousen,  exparie,  276,  714. 
Coventry  (Mayor  of)  v.  Coventry,  97, 
584. 

V.  Atty.-Gen.,  711. 

V.  Hall,  751. 

Covington,  in  re,  380. 
Cowdery  v.  Way,  633. 
Gowo-ill  V.  Lord  Oxmantown,  418. 
Cowfey  V.  Hartstouge,  538,  806,  808. 
Cowman  v.  Harrison,  171. 
Cowstad  T.  Cely,  847. 
Gowper  v.  Earl  Cowper,  680. 
Cox  V.  Barnard,  94,  853. 

V.  Bateman,  204,  238,  757. 

V.  Cox,  376,  433. 

V.  Dolman,  748,  749. 

V.  Parker,  14,  321,  679. 

Cox's  case  (Sir  Charles),  687. 

Coysegame,  ex  parte,  277. 

Grabb  v.  Crabb,  56,  61. 

Crabtree  V.  Bramble,  792,794,  805,806, 
823.  824. 

Crackelt  v.  Bethune,  357,  359,  362,  875. 

Gradock  v.  Piper,  320,  550,  655. 

Craigdallie  v.  Aikman,  497. 

Grallan  v.  Oulton,  484. 

Cramer  v.  Cramer,  890,  904. 

Cranch  v.  Cranch,  808. 

Crane  v.  Drake,  455,  456,  459. 

Cranstoun  v.  Johnston,  48. 

Crawford,  ex  parte,  479. 

Crawley  v.  Crawley,  118,  808. 

Crawshay  v.  Collins,  321,  548. 

Creagh  v.  Blood,  16,  232. 

Creed  v.  Covile,  12,  683. 

V.  Creed,  236,  847. 

V.  Perry,  372. 

Creuze  v.  Hunter,  489. 

Crewe  v.  Dicken,   233,   237,   297,  449 
531,  532,  533,  534.       . 

Cripps  V.  Jee,  178. 

Crisp  V.  Heath,  650. 

V.  Spranger,  226,  292,  459. 

Crispe  v.  Blake,  606. 

Croft  V.  Adam,  696. 

V.  Slee,  183,  190. 

Crofton  V.  Ormsby,  725. 
Crofts  V.  Middleton,  634. 
Grompton  t.  North,  181. 
Crook  V.  Ingoldsby,  572. 


Crooke  v.  Brooking,  63,  76,  77. 
Crop  V.  Norton,  63,  200,  218. 
Cropper  v.  Mellersh,  855. 
Crosby  v.  Church,  635,  640,  645. 
Crosley  v.  Archdeacon  of  Sudbury,  261. 
Crosse  v.  Smith,  296. 
Crossley  v.  Crowther,  718. 
Crouch  V.  Citizens  of  Worcester,  506, 

508. 
Crowe  V.  Ballard,  460,  470,   472,  473. 

V.  Crisford,  810. 

Croyden's  Trust,  380. 

Crozier  v.  Crozier,  156, 

Cruse  V.  Barley,  182,  183,  190,  195. 

Cruwys  v.  Colman,  167,  169,  704,  706. 

Cuddv  V.  Waldron,  857. 

Cuff  V.Hall,  416,  527. 

Cullingworth  v.  Lloyd,  486. 

Culpepper  v.  Aston,  179,  414,  428,  429, 

434.  435. 
Cummins  v.  Cummins,  238,   239,   240, 
319. 

Cunliffe  v.  Cunliffe,  168. 

Cunningham  v.  Moody,  621,   680,   793, 
794,  819,  820. 

Curling  v.  May,  806. 

Currant  v.  Jago,  216. 

Curre  v.  Bowyer,  655. 

Currer  v.  Walkley,  435. 

Currie,  exparie,  833. 

Curteis  v.  Candler,  367. 

Curtis  T.  Curtis,  621,  622,  753,  755. 

V.  Lukin,  111,  112,  597. 

V.  Price,  253. 

V.  Pdppon,  169,  171. 

Cusack  V.  Gusack,  147. 

Custance  v.  Bradshaw,  807. 

V.  Cunningham,  179. 

Cuthbert  v.  Baker,  432. 

Cutterback  v.  Smith,  488. 

Dack's  case  (Sir  John,)  43,  677,  678. 
Dakins  v.  Berisford,  122. 
Dalbiac  v.  Dalbiac,  643. 
Dale,  ex  parte,  278. 
D'Almaine  v.  Anderson,  575. 
Daniel  v.  Ubley,  35. 

V.  Warren,  368,  810. 

Daniels  v.  Davison,  725. 

D'Arcv  V.  Blake,  622,  625,  626,  755. 

Darcy  V.  Hall,  318. 

Darke  v.  Martvn,  337. 

Darley  v.  Darley,  97,  121,  122,  123. 

Darlington,  ex  parte,  517. 

D'Arnay  v.  Chesneau,  276. 

Darwell  v.  Darwell,  310. 

Davall   V.   New   River   Company,  321, 

679. 
Davenport  v.  Coltman,  182,  183,  184. 

T.  Stafford,  356. 

Davenport's  Charity,  re,  718,  899. 
Davers  v.  Dewes,  196,  197. 
Davey  v.  Miller,  885. 
I  David  V.  Frowd,  375. 


TABLE    OF    CASES. 


liii 


Davidson  v.  Foley,  179,  191,  650. 

V.  Gardner,  460,  633. 

Davies,  re,  895,  901. 

V.  Ashford,  823. 

V.  Austen,  518. 

v.  Davies,  147,  258,  727. 

V.  Goodhew,  806,   807. 

V.  Thornycroft,  128. 

V.  Weld,  407. 

V.  Westcomb,  421. 

Davis,  ex  parte,  575. 

V.  Dendy,  556. 

V.  Dysart,  227. 

v.  Jenkins,  498,  779. 

v.  Kirk,  680. 

V.  Front,  121. 

V.  Spurling,   226,    290,    292,    293, 

459. 

V.  Strathmore  (Earl  of)  672. 

Davy  V.  Hooper,  700. 

^  V.  Pepys,  646. 

T.  Seys,  873. 

Dawson  v.  Clarke,  179,   180,   181,  197, 
317,  557. 

V.  Hearn,  597. 

V.  Massey,  359. 

Day  v.  Croft,  557,  870. 

Dean  v.  Allen,  426. 

Dearden,  ira  re,  836. 

Dearie  v.  Hall,  605,  607. 

De  Clifford,  in  re,  836. 

Deerhurst  (Lord)  v.  Duke  of  St.  Albans, 
163. 

Deeth  v.  Hale,  597,  819. 

Deg  V.  Deg,  63,  204,  206,  238,  757. 

Degg's  case,  828. 

Delane  v.  Delane,  207. 

Delauney  v.  Barker,  274,  275. 

Deloraine  (Lord)  v.  Browne,  732,  734, 
735,  738. 

De  Manneville  v.  Crompton,  543. 

Dennis  v.  Badd,  227,  830. 

Denton  v.  Davies,  64,  757,  762,  764. 

V.  Denton,  589,  592. 

Deptford  (Churchwardens  of)  v.  Sketch- 
ley,  106,  107. 

Derbishire  v.  Home,  633,  765,  775,  778. 

Devenish  v.  Baines,  60,  71. 

Devey  v.  Peace,  575. 

T.  Thornton,  367,  595,  876. 

Devon  v.  Watts,  477,  480. 

Dew  V.  Clarke,  834. 

Dewdney,  ex  parte,  731. 

Dibbs  V.  Goren,  373. 

Dickenson  v.  Dickenson,  420,  430. 

Dickinson  v.  Shaw,  211. 

Dickenson  v.  Player,  340. 

Dickson,  re,  558,  562. 

Digby  V.  Howard,  643. 

V.  Irvine,  635,  666,  669. 

V.  Langworth,  602. 

T.  Legard,  182,  183. 

Dike  V.  Ricks,  429. 

Dillon  V.  Coppin,  81,  84,  94. 


Dillon  V.  Plaskett,  662. 
Dimes  V.  Scott,  291,  353,  815. 
Dimsdale  v.  Dimsdale,  94. 
Dinwiddle  v.  Bailey,  753. 
Disher  v.  Disher,  797. 
Dix  V.  Burford,  243. 
Dixon  V.  Olmius,  71,  122. 

V.  Dawson,  181. 

V.  Gayfere,  745,  816,  823. 

V.  Saville,  621,  625. 

Dobson  T.  Carpenter,  426. 

V.  Land,  319,  332,  165. 

Docker  v.  Somes,  318,  319,  321,  361, 

362. 
Docksey  v.  Docksey,  181. 
Dod  V.  Dod,  147. 

Dodson  V.  Hay,  154,  156,  621,  622,  793. 
Doe  V.  Amey,  667. 

V.  Ball,  478. 

V.  Barrel!,  667. 

V.  Barthrop,  253. 

V.  Bennett,  264. 

V.  Biggs,  249. 

V.  Bolton,  252. 

V.  Cadogan,  258. 

V.  Cafe,  141,  253,  254,  259. 

V.  Claridge,  247. 

T.  Cockell,  106,  107. 

V.  Danvers,  61,  617. 

V.  Edlin,  247. 

V.  Ewart,  252. 

T.  Field,  247. 

V.  Godwin,  301,  419. 

V.  Gi-eenhill,  065. 

v.  Harris,  182,  233,  236,  237,  243. 

V.  Hawkins,  505. 

V.  Hawthorn,  132. 

V.  Hicks,  253. 

V.  Hiley,  106,  107. 

V.  Homfray,  247,  250. 

V.  Hughes,  441,  442,  444,  445,  447. 

V.  Ironmonger,  254. 

V.  Jones,  498,  590. 

V.  Keen,  753. 

T.  Lea,  251,  255. 

V.  Lightfoot,  265. 

V.  M'Kaeg,  498,  590. 

V.  Munro,  132. 

V.  NichoUs,  249,  253. 

V.  Norton,  717. 

V.  Passinghara,  247. 

V.  Phillips,  586,  748. 

V.  Pott,  591. 

V.  Pratt,  250. 

V.  Price,  288. 

V.  Roe,  527,  580. 

V.  Rusham,  93. 

V.  Shotter,  250. 

V.  Simpson.  250,  251,  254,  259. 

V.  Smyth,  236. 

V.  Sotlieron,  252. 

V.  Staple,  590,  591. 

V.  Svbourn,  591. 

V.  Terry,  106,  107. 


liv 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


Doe  V.  Thompson,  45. 

V.  Underdown,  195. 

V.  Willan,  256. 

v.  "Woodhouse,  250. 

V.  Wroot,  591. 

Dolder  v.  Bank  of  England,  865. 
Dollond  V.  Johnson,  689. 
Dolman  v.  Pritman,  489. 
Dolton  V.  Hewen,  435. 

V.  Young,  444. 

Dommett  v.  Bedford,  136. 
Donaldson  y.  Donaldson,  81,  91. 
Donne  v.  Hart,  26,  629. 
Donohoe  v.  Conrahy,  65. 
Doody  T.  Higgins,  856. 
Doolan  v.  Blake,  632. 
Doran  v.  Wiltshire,  433,  435. 
Dorchester  (Lord)  v.  Earl  of  Effingham, 

332. 
Dormer's  case,  826,  827. 

T.  Fortescue,  409,  751,   752,   753, 

754   755   756. 
Dornford   v.  Dornford,  358,  359,  364, 

766,  771,  772. 
Douglas  Y.  Allen,  484. 

Y.  Browne,  290. 

Y.  CongreYe,  815. 

Y.  Horsfall,  844. 

DoYe  V.  EYcrard,  235,  242. 
DoYcnby  Hospital,  in  re,  782. 
DoYer,  ex  parte,  243,  838,  880. 
Dowling  Y.  Belton,  830. 

Y.  Hudson,  434. 

Dowling  Y.  Maguire,  632,  634,  635. 
Downe   (Viscount)   y.  Morris,   14,   18, 

283,  285,  322. 
Downs  Y.  Thomas,  850. 

Y.  Worrall,  700. 

Downes  y.  Grazebrook,  414,  461,  463, 

464. 
Downing  v.  Townsend,  95. 
Dowtie's  case,  676. 
Doyle  Y.  Blake,  232,  240,  289,  292,  310, 

311,  313,  366. 
Doyley  y.  Attorney-General,  297,  533, 

534,  696,  700,  704,  712. 
Doyly  Y.  Sherratt,  298. 
Drake  y.  Whitmore,  417. 
Drakeford  y.  Wilks,  70. 
Drakeley's  Trust,  in  re,  118. 
Drant  y.  Vause,  808. 
Drayson  y.  Pocock,  414,  450,  712. 
Drew  V.  Harman,  842. 
Drever  v.  Mawdesley,  541. 
Drohan  v.  Drohan,  456,  522. 
Drosier  v.  Brereton,  82,  345,  350. 
Drummond  y.  Duke  of  St.  Alban's,  751 , 

756. 
Drury  v.  Scott,  642. 
Duberley  y.  Day,  20,  629. 
Dubless  V.  Flint,  864,  866. 
Dubois,  ex  parte,  269. 
Dudgeon  y.  Cormley,  858. 
Dudley  (Lord)  y.  Lady  Dudley,  794. 


Du  Hourmelin  y.  Sheldon,  43,  807. 

Dumas,  ex  parte,  274,  276. 

Dummer  y.  Corporation  of  Chippenham, 

31. 
Dumoncel  Y.  Dumoncel,  43,  132,  621. 
Dunbar  y.  Tredennick,  466,  469,  470, 

472,  473,  725. 
Duncan  y.  Chamberlayne,  613. 
Dunch  V.  Kent.  318,  428,  435,  486. 
Duncombe  v.  Mayer,  592. 

V.  Nelson,  517. 

Dundas  y.  Blake,  746. 

Y.  Dutens,  648. 

Dunkley  v.  Dunkley,  369,  370. 

Dunman,  ex  parte,  422. 

Dunnage  y.  White,  181. 

Dunne  y.  Dunne,  514. 

Dunster  y.  Glengal,  608. 

Durour  y.  Motteux,  196,  197. 

Duttou  Y.  Morrison,  476,  477,  478,  479. 

Dyer  y.  Dyer,  200,  207,  209,  211,  212, 

213. 

Eade  Y.  Bade,  167,  169,  171. 

Bales  Y.  England,  167,  169,  283. 

Barlom  Y.Saunders,  792,  796,806,  816. 

East  Y.  Ryall,  506,876. 

East  Greenstead's  case,  726. 

Bast  India  Company  v.  Henchman,  225. 

Eaton  Y.  Smith,  531. 

Ebrand  y.  Dancer,  200,  216. 

Bccleston  y.  Skelmersdale,  845. 

Eckhardt  y.  Wilson,  477,  479. 

Bddleston  y.  Collins,  36. 

Eden  y.  Foster,  492,  493,  499. 

Edenborough  y.  Archbishop  of  Canter- 
bury, 107,  109,  110,  777,  874. 

Edmonds  y.  Dennington,  631. 

V.  Peake,  427. 

Edwards  Y.  Fashion,  202. 

Y.  Freeman,  20. 

Y.  GraYCS,  19. 

V.  HarYey,  421,  872. 

V.  Jones,  81,  88. 

Y.  Lewis,  220. 

Y.  Morgan,  751,  756. 

V.  Pike,  80,  205. 

Y.  Tuck,  118,  119. 

Y.  Countess  of  Warwick,  797,  805, 

806,  820,  822,  824. 

Eidsforth  y.  Armstead,  441,  446,  447. 

Eland  y.  Eland,  435,  436,  437,  444,  456, 
458. 

Elborne  y.  Goode,  116,  118. 

Eldridge  y.  Knott,  736. 

Elibank  (Lady)  y.  Montolieu,  628. 

Ellerthorpe,  in  re,  883. 

Ellice,  ex  parte,  343. 

Elliot  Y.  Brown,  202. 

Y.  Edwards,  725. 

Y.  Elliot,  177,  207,  211,  214,  215. 

Y.  Merriman,  435,  441,  444,  455, 

738. 

Ellis,  ex  parte,  274. 


TABLE    OP    CASES, 


Iv 


Ellis  V.  Atkinson,  123. 

V.  Maxwell,  116. 

V.  Nimmo,  96,  97,  99. 

V.  Selbj-,  182. 

Ellison  V.  Airey,  551. 

V.  Ellison,  81,  84,  89,  99. 

V.  Elwin,  628. 

Ellison's  Trust  in  re,  236,  895. 

Elliston,  ex  parte,  277. 

Elmsley  v.  Young,  707. 

Else  v.^Osboru,  407. 

Elsee,  ex  parte,  557. 

Eltham   (Inhabitants   of)  v.  Warreyn, 

198,  506. 
Elton  V.  Harrison,  444. 
Emblyn  v.  Freeman,  182. 
Emelie  v.  Emelie,  341. 
Emmett  v.  Dewhurst,  486. 
Emuss  V.  Smith,  808. 
England  (Bank  of)  v.  Lunn,  32,  33. 

V.  Moffat,  32,  33. 

V.  Parsons,  32,  33. 

England  (Mary),  in  re,  408. 

V.  Downs,  131,  244. 

Entwistle  v.  Markland,  813. 

Erskine's  Trust,  in  re,  380. 

Estwick  T.  Caillaud,  474,  475,  476,  477, 

480,  648. 
Etty  V.  Bridges,  608,  611,  614,  863. 
Evans  v.  Bagwell,  482,  483. 

V.  Bicknell,  592,  775. 

V.  Brown,  14,  18,  285. 

V.  Coventry,  870. 

V.  Hellier,  114,  117,  119. 

V.  Jackson,  416,  523. 

V.  John,  241. 

V.  Stokes,'  852. 

V.  Tweedy,  485. 

Evelyn  v.  Forster,  835,  839. 

v.  Templar,  93,  94,  97,  99. 

Everett,  in  re,  377. 

V.  Prythergch,  870. 

Evroy  v.  Nicholas,  39. 

Ewer  V.  Corbet,  455,  456,  458. 

Exel  V.  Wallace,  145. 

Eyre's  case,  820. 

Eyre  v.  Dolphin,  218,  220,  224. 

V.  Marsden,  118,  119,  183. 

V.  Countess   of  Shaftesbury,  299, 

300,  536. 

Fagg's  Trust,  in  re,  380,  577. 

Fain  v.  Ayres,  227. 

Falkland,  Lord  v.  Bertie,  753. 

Falkner  v.  Lord  Wynford,  700. 

Fane  v.  Fane,  59,  61. 

Farquharson  v.  Seton,  845. 

Farr  v.  Newman,  261,  262,  274,  278. 

T.  Sheriffe,  857,  858. 

Farrar  v.  Winterton,  655. 
Farrell  v.  Smith,  375. 
Farrington  v.  Knightly,  19. 
Faulkner  v.  Elger,'  109. 
Fauntleroy,  in  re,  713. 


Fawcet  v.  Lowther,  680. 
Fawcett  v.  Whitehouse,  225. 
Fearns  v.  Young,  558,  808. 
Fearon  v.  Webb,  107,  108. 
Featherstonhangh  v.Fenwick,  218,  220. 
Fell  V.  Brown,  849. 

V.  Lutwidge,  875. 

Fellowes  v.  Till,  839. 

V.  Mitchell,  304,  305,  337,  774. 

Fellows's  Settlement,  in  re,  897,  901. 
Feltham's  Trusts,  in  re,  380. 
Fenniliteau,  ex  parte,  835. 
Fenwick  v.  Greenwell,  700,  765. 
Feoffees  of  Heriot's  Hospital  v.  Ross, 

557,  561. 
Fergus  (Executors  of)  v.  Gore,  484. 
Ferguson  v.  Livingstone,  734. 

V.  Tadman,  174. 

Ferraby  v.  Hobson,  505,  506. 
Fernie  v.  Maguire,  331. 
Ferrars  v.  Cherry,  725,  726. 
Fettiplace  v.  Gorges,  642. 
Fidgeon  v.  Sharp,  480. 
Field's  Trust,  in  re,  381. 

•  Mortgage,  265. 

Field,  ex  parte,  860. 

V.  Donoughmore,  367,  486,  595. 

V.  Evans,  123. 

V.  Lonsdale,  101. 

V.  Sowle,  634,  635,  640,  641. 

Finch's  case   (Sir  Moyle),  4,  9,  16,  18, 

56,  287. 
Finch  V.  Finch,  200,  207,  209,  215. 

V.  Earlof  Winchelsea,99,  174,  279, 

280. 

V.  Hollingsworth,  701,  704. 

Finden  v.  Stephens,  102. 
Finlay  v.  Howard,  710. 
Fishbourne,  in  re,  451. 
Fish  V.  Klein,  39. 
Fitch  V.  Weber,  182,  184. 
Fitzgerald,  in  re,  583,  713. 

V.  Fitzgerald,  631. 

V.  Jervoise,  415,  792,  816. 

V.  O'Flaherty,  876. 

V.  Pringle,  341,  877. 

Fitzgibbon  v.  Blake,  634,  642. 
Fitzroy  v.  Howard,  384. 
Flack^s  settlement,  in  re,  378. 
Flanagan  v.  Flanagan,  177. 

V.  Nolan,  365,  876,  877. 

Flanders  v.  Clark,  536,  696. 
Flemming  v.  Page,  725. 
Fletcher,  ex  parte,  381. 

V.  Ashburner,  177,  183,  793,  819. 

V.  Chapman,  189. 

V.  Fletcher,  81,  94,  719. 

V.  Robinson,  794. 

V.  Sidley,  93. 

V.  Stevenson,  375,  426. 

V.  Walker,  333. 

Flint  V.  Warren,  1 84. 

Flitcroft,  in  re,  893. 

Fogin  V.  Andrews,  877,  979. 


Ivi 


LEWIX  ON  THE  LAW  OF  TRUSTS,  ETC. 


Folev,  ex  parte,  849. 

^"t.  Burnell,  152,  161, 163,  261,  280, 

TIS. 

T.Hill,  731,^32. 

V.  Parry,  167. 

V.  Wontner,   301,   419,    497,  498, 

527,  580. 
Follett  V.  Tjrer,  623. 
Folj's  case,  488,  489. 
Fooue  V.  Blount,  792,  796. 
Foord,  ex  parte,  477. 
Footner  v.  Sturgis.  662. 
Forbes  v.  Ball,  167,  706. 

V.  Peacock,   430,    434,    435,  437, 

440,  441,  442,  445,  453,  458. 

V.  Ross,  339,  359,  361,  365. 

Ford  V.  Hopkins,  758. 

V.  Rvan,  331,  433,  453. 

V.  White,  729. 

Ford's  Charity,  in  re,  785. 
Forderr.  Wade,  621,  751. 
Fordham  v.  Wallis,  373. 
Fordyce  v.  Bridges,  533,  712. 

V.  Willis,  25,  56,  57,  59,  61,  267. 

Forrest  v.  Elwes, 

Forshaw  v.  Higginson,  583,  584. 

Forster  v.  Hale,  61,  62,  63,  64,  65. 

Fortescue  v.  Barnett,  86. 

Forth  V.  Duke  of  Norfolk,  650,  653,  655, 

665. 
Fosbrooke  v.   Balguv,   217,   225,  318, 

319. 
Foster  v.  Blackstone,  605,  008,  612,  650, 
653,  656. 

T.  Crabb,  592. 

V.  Cockerell,  608. 

T.  Deacon,  174. 

V.  Foster,  359. 

V.  Handlej-,  692. 

V.  Hodgson,  734. 

Fothergill  v.  Fothergill,  97. 

T.  Kendrick,  650. 

Fountaine  v.  Pellett,  559. 
Fourdrin  v.  Gowdey,  43. 
Fowler  v.  Churchill,  671. 

v.  Fowler,  643^  644. 

V.  Garlike,  181. 

V.  Reynall,  346. 

Fowlser,  exparte,  791. 

Fox  V.  Bishop  of  Chester,  136.     * 

T.  Fisher,  277. 

V.  Mackreth,  400,  469,  473. 

Foxall,  in  re,  713. 

Fozard's  Trust,  in  re,  379,  816. 

Fozier  v.  Andrews,  877,  879. 

France  v.  Woods,  332. 

Francis  v.  Francis,  345,  561. 

Francis  t.  Grover,  746. 

Francis  v.  Wigsell,  035,  640. 

Franco  v.  Franco,  317,  629,  851. 

Frank  v.  Frank,  816. 

Franklin  v.  The  Bank  of  Ent^land,  32. 

V.  Frith,  351,  359,  875,  878. 

V.  Green,  519. 


Franklj-n,  ex  parte,  343. 
Franks  v.  Price,  157. 
Eraser  v.  Palmer,  320,  549. 
Frazer  t.  Moor,  734. 
Freake  v.  Cranefeldt,  485. 
Frederick  v.  Aynscombe,  796. 

V.  Frederick,  806. 

Freeman  v.  Fairlie,  547,  599,  864,  867. 

T.  Tatham,  64. 

V.  Taylor,  650. 

Freemoult  v.  Dedire,  174,  488. 
Freme  v.  Woods,  332. 
Fremington  School,  in  re,  781. 
French,  ex  parte,  348. 

V.  Baron,  546. 

T.  Davidson,  538,  539,  543. 

V.  Hobson,  777. 

Frewin  v.  Charleton,  409. 
Friendly  Society,  ex  parte,  783. 
Frost's  Settlement,  in  re,  895. 
Fulham,  in  re,  901. 

V.  Jones,  796. 

Fuller  V.  Knight,  349,  415,  771. 

T.  Lance,  476. 

Fussell  V.  Elwin,  854. 

Fulton  V.  Gilmour,  374. 

Fursaker  v.  Robinson,  94. 

Fust,  ex  parte,  343. 

Putter  V.  Jackson,  867. 

Fyler  v.  Fyler,  226,  358,  562,  766,  774. 

Fyson  v.  Pole,  734. 

Gafifee,  in  re,  131. 

Gainsborough  v.  Gainsborough,  181. 

Gale  V.  Pitt,  356. 

V.  Williamson,  477. 

Galliers  v.  Moss,  264. 
Galway  v.  Butler,  857. 
Gannon  v.  W^hite,  89. 
Gardiner  v.  Fell,  02,  753,  754. 
Gardiner  v.  Marshall,  370. 

V.  Rowe,  63. 

Garey  v.  Wliittingham,  858. 
Garfoot  V.  Garfoot,  173. 
Garland,  ex  parte,  273. 
Garrard  v.  Lauderdale,  81,  84,  99,  101, 
476,  482,  483. 

T.  Tuck,  586,  590,  748. 

Garrat  v.  CuUum,  275. 
Garratt  v.  Lancefield,  426. 
Garrett  v.  Noble,  415. 

v.- Wilkinson,  216. 

Garth  v.  Baldwin,  141,  142,  247. 

V.  Cotton,  156,  408,  753. 

Gascoigne  t.  Thwing,  204,  205. 
Gaskell  v.  Gaskell,  100. 

V.  Harman,  792. 

V.  Holmes,  368. 

Gaston  v.  Frankum,  634. 
Gaunt  V.  Taylor,  857,  858. 
Gayner's  case,  477. 
Geary  v.  Bearcroft,  57,  260,  590. 
Geaves,  ex  parte,  277,  772. 
Gennys,  ex  parte,  274,  276. 


TABLE    OF    CASES. 


Ivii 


Gent  v.  Harris,  369.  370. 
George  v.  Bank  of  England,  61. 

V.  Howard,  179. 

Gibbons  v.  Baddall,  725. 
Gibbs  V.  Glamis,  482. 

V.  Herring,  313. 

V.  Ougier,  183. 

V.  Rumsey,  181,  182,  183,  195. 

Gibson  v.  Bott,  814,  815. 

V.  Jeyes,  460,  461,  463. 

v.  Lord  Montford,  251. 

V.  Rogers,  616. 

V.  Winter,  269. 

Giddings  v.  Giddings,  218,    220,    221, 

223,  224,  225,  397,  398. 
Gifford  V.  Hort,  733. 

V.  Manley,  238. 

Gilchrist  v.  Cator,  370. 

Giles  V.  Dyson,  557. 

Gill  V.  Attorney-General,  314. 

Gillam,  ex  parte,  833. 

Gillespie  v.  Alexander,  375. 

Gillett  V.  Peppercorn,  225. 

Gillibrand  v.  Goold,  421,  430. 

Gillies  V.  Longlands,  818,  819,  823. 

Girling  v.  Lee,  488. 

Gladding  v.  Yapp,  182. 

Gladdou  v.  Stoneman,  870. 

Gladstone  v.  Hadwen,  274. 

Glaister  v.  Hewer,  216. 

Glass  V.  Oxenhara,  847. 

Glenorchy  (Lord)  v.  Bosville,  141,  144, 

154. 
Glover  v.  Monckton,  251,  256. 

V.  Strothoflf,  53. 

Glynn  v.  Lock.  330,  433. 

Gobe  V.  The  Earl  of  Carlisle,  18. 

Goddard,  in  re,  836. 

Goddard  v.  Macaulay,  835,  881. 

Godden  v.  Crowhurst,  134. 

Godfrey  v.  Dixon,  43,  132. 

V.  Furzo,  274. 

V.  "Watson,  556,  557. 

Godolphin  v.  Godolphin,  34,  525,  526. 

Godsall  V.  Webb.  91. 

Godwin  v.  Winsmore,  621,  622. 

Goffe  V.  Whalley,  684. 

Golding  T.  Yapp,  59,  69. 

Goldsmid  v.  Stonehewer,  855. 

Gomley  v.  Wood,  549,  550. 

Goode  V.  West,  376,  377. 

Goodenongh  v.  Goodenongh,  756. 

V.  Treraamondo,  810. 

Goodere  v.  Lloyd,  181. 
Goodrick  v.  Brown,  602,  604. 
Goodright  v.  Hodges,  60,  199,  203,  205, 
207. 

V.  Opie,  195. 

V.  Wells,  15,  16,  61,  591. 

Goodson  V.  Ellisson,  367,  595,  600,  850. 
Goodtitle  v.  Jones,  591. 

V.  La3'man,  252. 

Y.  Whitby,  251,  255. 

Goodwin  v.  Gosnell,  763. 


Goodwin  v.  Lister,  832. 
Gordon  v.  Gordon,  97. 

V.  Trail,  558. 

Gore's  Charity,  in  re,  836,  837. 

T.  Bowser,  238,  648,  663. 

Gorge's  (Lady)  case,  209,  212,  216. 

V.  Chansey,  521. 

Goring  v.  Bickerstaff,  12,  600. 

V.  Nash,  94,  97,  99. 

Gorst  V.  Lowndes,  113. 
Gosling  V.  Carter,  435,  441,  442,  444, 
446,  447. 

V.  Dorney,  487. 

Goss  T.  Neale,  474,  475. 
Gough  V.  Birch,  458. 

V.  Bult,  729,  748. 

Gould  V.  Fleetwood,  545,  553. 
Gouldsworth  v.  Knight,  107,  299. 
Governess's  Institution  v.  Rusbridger, 

868. 
Gover,  ex  parte,  424. 
Gower  v.  Eyre,  514. 

V.  Grosvenor,  144,  150,  158. 

V.  Mainwaring,  22,  526,  697,  699. 

Gowland  v.  De  Faria,  738. 

Grace,  ex  parte,  218. 

Graham  v.  Birkenhead,  737,  775. 

T.  Fitch,  633. 

V.  Lord  Londonderry,  386,  395. 

Grange  v.  Tiving,  35,  36,  37. 
Grant  v.  L^'nam,  705. 

V.  Mills,  276,  725. 

Gravenor  v.  Hallum,  194. 
Graves  v.  Dolphin,  132,  133. 
Gray,  ex  parte,  269. 

"-  V.  Chaplin,  852. 

V.  Gray,  83. 

V.  Haig,  599. 

Greatley  v.  Noble,  634,  639,  756. 
Greaves  v.  Powell,  487. 
Greedy  v.  Lavender,  628. 
Green,  ex  parte,  269,  517. 

V.  Ekins,  148. 

V.  Holden,  836. 

V.  Howard,  699,  707. 

V.  Jackson,  197. 

V.  Marsden,  170,  171. 

V.  Pledger,  866. 

V.  Rutherforth,  10,  31,  492,  494. 

V.  Spicer,  132,  133. 

V.  Stephens,  158,  796. 

Greenfell  v.  Girdlestone,  736,  737. 
Greenhill  v.  Greenhill,  615,  616. 
Greenhouse,  exparte,  496,  711. 
Greening  v.  Beckford,  613. 
Greenwell  v.  Greenwell,  520. 
Greenwood  v.  Churchill,  478. 

v.  Evans,  387,  390,  391,  400,  401. 

V.  Taylor,  485. 

V.  Wakeford,  583,  584,  768. 

Gregory  V.  Gregory,  305,  306,  310,  462, 
470,  471. 

V.  Henderson,  246,  248. 

V.  Lockver.  642. 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


Iviii 

Greislev  v.  Chesterfield  (Earl  of),  813. 

Grenviile  (Lord)  v.  Blyth,  279. 

Greswold  v.  Marsham,  650. 

Grey  v.  Colville,  12,  682,  689. 

V.  Grey,  177,  200,  207,  210,  211, 

212,  213,  214. 
Grierson  v.  Eyre,  753. 
Griesbach  v.  Freemantle,  823,  824. 
Grieveson  v.  Kirksopp,  696,  701,  704, 

807,  808. 
Griffin,  ex  parte,  294,  298,  332,  357. 

V.  Griffin,  217,  220. 

Griffith  V.  Evans,  168,  170. 

V.  Buckle,  147. 

V.  Ricketts,  807. 

Griffiths  V.  Vera,  114,  117. 

Grigby  v.  Cox,  632. 

Grimstone,  ex  j^ arte ^  825,  826,  827,  830. 

Grogan  v.  Cooke,  648,  649. 

Groom  v.  Booth,  851. 

Grosvenor  v.  Cartwright,  360. 

Groves  v.  Groves,  138, 200, 204,  205, 207. 

Gubbins  v.  Creed,  318. 

Gude  v.  Worthington,  543,  696. 

Guiberts'  Trust,  577. 

Guidot  V.  Guidot,  792,  796,  806. 

Gurner,  exparte,  357,  772. 

Guthrie  v.  Crossley,  480. 

Gwilliams  v.  Rowel,  173,  300. 

Haberdasher's  Company  v.   Attorney- 
General,  875. 
Habergham  v.  Vincent,  17,  66,  69,  181. 
Hackett  v.  M'Namara,  416. 
Hadley,  in  re,  572,  895. 
Hagger,  ex  parte,  838. 
Halcott  V.  Markant,  204,  205,  206. 
Haldenby  v.  Spoflforth,  416. 
Hale  V.  Allnutt,  480. 

V.  Lamb,  94,  97,  221. 

Haley  v.  Bannister,  114,  118. 
Halford  V.  Stains,  118,  120,  177. 
Hall,  in  re,  763. 

V.  Austin,  854. 

V.  Coventry,  752. 

V.  Dewes,  301,  528. 

V.  Hallett,  46,  358,  359,  301,  460, 

465,  469,  470,  873. 

V.  Hugonin,  372. 

V.  Jones,  300. 

V.  Laver,  101,  561. 

T.  Noyes,  461,  470. 

Hall's  Charity,  in  re,  781. 
Halliburton  v.  Leslie,  36. 
Halliday  v.  Hudson,  179,  181. 
Hamer's  Devisees,  285. 
Ham's  Trust,  380. 
Hamilton  v.  Ball,  138. 

v.  Fry,  582,  583. 

V.  Grant,  731. 

V.  Handcock,  833. 

v.  Houghton,  488,  489. 

V.  Mainwaring,  131. 

V.  Wright,  318. 


Hamond  v.  Hicks,  729. 
Hampshire  v.  Bradley,  875. 
Hampton  v.  Spencer,  63,  64. 
Hanbury  v.  Kirkland,  306,  317,  351. 
Hancom  v.  Allen,  341,  351. 
Hancox,  ex  parte,  716. 

Handcock  ( v.)  833. 

Handick  v.  W'ilkes,  147. 
Hands  v.  Hands,  701,  704. 
Hankey  v.  Garret,  359,  361. 

V.  Hammond,  273. 

Hanman  v.  Riley,  485,  855. 
Hanne  v.  Stevens,  849. 
Hanson  v.  Beverley,  451,  523. 

V.  Keatin,  26,  629. 

Hanson,  ex  parte,  277. 
Harbert's  case,  646,  659. 
Harcourt  v.  Seymour,  816,  824. 
Harden  v.  Parsons,  304,  305,  310,  314, 

332,  337,  776. 
Hardey  v.  Hawkshaw,  807. 
Harding  v.  Glyn,  167,  696,   701,  703, 
704,  706. 

V.  Hardrett,  284,  725. 

Hardman,  ex  parte,  715. 

V.  Johnson,  225. 

Hardwick  v.  Mynd,  290,  422,  434,  447, 

449,  471,  529,  533,  738. 
Hardwicke  (Lord)  v.  Vernon,  466,  469, 

599. 
Hardy  v.  Reeves,  728,  734. 
Harford  v.  Furrier,  174. 
Hargrave  v.  Tindall,  488. 
Hargreaves  v.  Michell,  484,  729. 
Hargthorpe  v.  Milforth,  310. 

Harland  v.  Binks,  476,  483. 
V.  Trigg,  168,  169. 

Harley  v.  Harley,  627. 

Harman  v.  Fisher,  480. 

Harmood  v.  Oglander,  16,  735,  751,  756. 

Harnard  v.  Webster,  766. 

Harnett  v.  Macdougal,  130. 

V.  Maitland,  514. 

Harris'  Trust,  in  re,  379. 

V.  Booker,  665. 

V.  Davison,  656. 

V.  Horwell,  70. 

V.  Mott,  633,  646. 

V.  Poyner,  810. 

v.  Pugh,  247,  665. 

Harrison  v.  Borwell,  735. 

in  re,  252. 

v.  Cage,  428. 

v.  Coppard,  227. 

V.  Duignan,  746. 

V.  Forth,  726. 

V.  Graham,    235,    241,    290,    291, 

305,  310. 

V.  Harrison,  356. 

V.  Hollins,  733. 

V.  Naylor,  153,  156. 

V.  Pryse,  372,  846. 

V.  Stewardson,  843,  852. 

Harrop  v.  Howard,  130. 


TABLE    OF    CASES. 


lix 


Hartnall,  in  re,  891,  905. 
Harte  v.  French,  713. 

V.  Middlehurst,  149. 

Hart  V.  Tribe,  168. 

Hartford,  in  re,  713. 

Hartga  v.  The  Bank  of  England,  32. 

Hartley  v.  Hurle,  122. 

Harton  v.  Harton,  247,  255. 

Hartop  V.  Hoare,  275. 

Hartshorn  v.  Slodden,  480. 

Hartwell  v.  Chitters,  687. 

Ilarvej  v.  Audland,  94. 

V.  Harvey,  121,  386,  517,  694,  811, 

851. 
Harwood  t.  Wrayman,  685. 
Hasell,  ex  f  arte,  730. 
Hassell  V.  Simpson,  477. 
Hathorntwaithte  v.  Russell,  871. 
Havers  v.  Havers,  870,  871. 
Hawker  v.  Hawker,  251,  256. 
Hawkins  v.  Chappell,  318,  415. 

V.  Gardner,  61. 

V.  Kemp,  237,  449,  532. 

V.  Lawse,  685. 

V.  Luscombe,  255. 

V.  Obeen,  832. 

Hay  V.  Bowen,  368. 

Hayes  v.  Kingdome,  177,  201,  210. 

Hayford  v.  Benlows,  189. 

Haj^s,  ex  parte,  517. 

Hayton  v.  Wolf,  234. 

Haytor  v.  Rod,  805. 

Haywood  v.  Ovey,  848. 

Head  v.  Lord  Teynham,  596,  848. 

Heap  V.  Tonge,  94. 

Heardson  v.  Williamson,  256. 

Hearle  v.  Greenbank,  34,  35,  36,  526, 

623,  624. 
Hazeldine,  in  re,  895. 
Heath,  in  the  matter  of,  714. 

v.  Henley,  729. 

V.  Percival,  847. 

Heathcote  v.  Hulme,  359,  361,  363. 
Heatley  v.  Thomas,  633,  634,  640. 
Heaton,  ex  parte,  772. 

v.  Marriott,  304. 

Heenan  v.  Berry,  745. 

Heighington  v.  Grant,  363,  876. 

Hemming,  ex  parte,  380. 

Henchman   v.    Attorney-General,    194, 

198,  325,  795. 
Henderson  v.  M'lver,  557. 
Henley  v.  Stone,  842. 

V.  Philips,  877. 

V.  Webb,  817,  821,  823. 

Hennessey,  exparte,  609,  610,  612,  613. 
Herbert,  ex  parte,  277. 
Hercy  v.  Ballard,  751,  756. 

V.  Dinwoody,  471,  738,  739. 

Hereford  v.  Ravenhill,  189,  806. 

Heron  v.  Heron,  204,  206. 

Hertford  (Borough  of)  v.  Poor  of  same 

Borough,  878. 
(Marquis  of)  in  re,  860,  864. 


Hethersell  v.  Hales,  559. 
Hewett  V.  Hewett,  529,  696. 

V.  Foster,  315,  316,  876. 

Hewitt  V.  Wright,  184. 

V.  Morris,  814. 

Hey's  Will,  in  re,  893. 

Hibbard  v.  Lambe,  22,   531,   533,   536, 

710,  712. 
Hibbert  v.  Cooke,  514. 

V.  Hibbert,  101. 

Hichens  v.  Congreve,  225,  851. 
Hichens  v.  Kelly,  842. 
Hickling  v.  Boyer,  426. 
Hicks  V.  Hicks,  359,  361,  777. 

V.  Sallitt,  753,  754, 

Hickson  v.  Fitzgerald,  234,  874. 
Hide  V.  Heywood,  557,  875. 
Higginson  v.  Barneby,  165. 

V.  Kelly,  136. 

Highway  v.  Banner,  148,  604. 
Higinbotham  v.  Holme,  136. 
Hilchius  V.  Hilchins,  251. 
Hill,  ex  parte,  136. 

V.  Buckley,  415. 

V.  Cock,  183. 

V.  Edmonds,  630. 

V.  Gomme,  765. 

V.  Hill,  164,  165. 

V.  Bishop  of  London,   172,   180, 

269,  318. 

V.  Magan,  560,  872. 

V.  Simpson,  455,  456,  457,  459. 

Hillary  v.  Waller,  736,  738. 
Hilliard,  in  re,  359,  361. 
Hinckley  v.  Maclarens,  707. 
Hind  V.  Poole,  420,  530. 
Hindle  v.  Taylor,  167. 
Hinde  v.  Blake,  867,  869. 
Hindmarsh  v.  Southgate,  39. 
Hinton,  exparte,  135. 

v.  Hinton,  260,  276,  279. 

Hinves  v.  Hinves,  811. 
Hitch  V.  Leworthy,  296. 
Hixon  V.  Wytham,  487. 
Hoare  v.  Parker,  594. 

v.  Peck,  734,  735. 

Hobart  v.  Countess  of  Suffolk,  179. 
Hobby  V.  Collins,  818. 
Hobson  V.  Bell,  423,  612. 

V.  Trevor,  751. 

V.  Staneer,  842. 

Hockley  v.  Bantock,  341,  356. 

V.  Mawbey,  700. 

Hodge  V.  Attorney-General,  30. 

V.  Churchwood,  746. 

Hodges,  in  re,  378. 

V.  Blagrave,  425. 

Hodgeson  v.  Bussey,  149. 
Hodgkinson  v.  Cooper,  224. 
Hodgson,  exparte,  136. 
Hodgson,  in  re,  380. 

V.  Hodgson,  605. 

Hodle  V.  Healey,  734. 
Hodsden  v.  Lloyd,  261. 


Ix 


LEWIN    ON    THE    LAW    OF    TllUSTS,    ETC. 


Hodson's  settlement,  895. 

Holder  V.  Durbin,  713. 

Holdernesse  v.  Carmarthen,  820,  «2i. 

Holford  V.  Pbipps,  595. 

Holgate  V.  Hawortli,  359,  879. 

Holland's  case,  19,  20,  30,  629,  677,  678. 

V.  Baker,  843,  844,  851. 

V.  Hughes,  351,  353,  355,  792. 

Holliday  v.  Overton,  141. 
HoUingsworth  v.  Shakeshaft,  359. 
Hollis's  case  (Lord,)  729. 
Holloway's  case,  28,  287. 
llolloway  V.  Headington,  94,  99. 

V.  Radcliffe,  819. 

Holmes  v.  Bell,  849. 

V.  Coghill,  97. 

V.  Dring,  337,  338. 

V.  Moore,  338. 

Holt,  exparte,  772. 

V.  Holt,'2l7,  222. 

Homan  y.  Hague,  857. 
Honner  v.  Morton,  627. 
Honnor's  Trust,  504. 
Honor  v.  Honor,  148. 
Hood  V.  Clapham,  810. 

V.  Hall,  836. 

Hooke  V.  Kinnear,  844. 
Hooper  v.  Eyles,  204. 

V.  Goodwin,  183. 

V.  Smith,  477,  480. 

Hope  V.  Corporation  of  Gloucester,  742. 
V.  Liddell,  263,  451,  765,  775. 

Hopkins  V.  Hopkins,  8,  104,  144,  156, 
181,  247,  619. 

V.  Myall,  596. 

Hopkinson  v.  Roe,  557. 

Horde  v.  Earl  of  Suffolk,  542. 

Hore  V.  Beecher,  631. 

Horn  V.  Horn,  435,  436,  648. 

Home  V.  Barton,  156,  1G5,  166,  167. 

Horner  v.  Wheelwright,  590. 

Horrocks  v.  Ledsam,  848,  872. 

Horsfall,  in  re,  264. 

Horsley  v.  Chaloner,  332. 

V.  Fawcett,  851. 

Ilorwood,  exparte,  277,  278. 

V.  West,  168,  171. 

Hoskins  v.  Kicholls,  857. 

Houell  V.  Barnes,  530. 

Hough's  will,  in  re,  250. 

Hougham  v.  Sandys,  681. 

Houghton,  ex  parte,  199,  200,  203. 

V.  Koenig,  274. 

House  V.  Way,  808. 

Hovenden  v.  Lord  Annesley,  30,   719, 
730,  732,  734,  735,  739. 

Hovey  V.  Blakeman,  124,  312,  314,  315. 

How  V.  Godfrey,  545,  546,  557. 

V.  Kennett,  474. 

V.  Whitfield,  529. 

Howard's  Estate,  in  re,  884. 

V.  Digby,  643,  644. 

V.  Ducane,  462. 

V.  Hooker,  631. 


Howard  v.  Jemmet,  274,  758. 

V.  Papera,  870,  871. 

V.  Rhodes,  583. 

Howe  V.  Earl  of  Dartmouth,  330,  342, 
351,  353,  355,  768,  808,  809. 

V.  Howe,  199,  202. 

Howel  V.  Howel,  148,  149. 
Howell  V.  Howell,  752. 
Howse  V.  Chapman,  183. 
Hoy  V.  Master,  170,  172. 
Huddlestoue  v.  Whelpdale,  402. 
Hudson  V.  Hudson,  300,  316. 
Huet  V.  Fletcher,  739. 
Hughes,  ex  parte,  462,  464,  465,   466, 
468,  469,  473. 

V.  Evans,  180. 

V.  Kelly,  746. 

V.  Key,  851,  857. 

T.  Lumley,  672. 

V.  Stubbs,  83,  100. 

V.Wells,  640,  775. 

V.Wynne,  484,  491. 

Hughson  V.  Cookson,  850. 
Hulkes  V.  Barrow,  384. 

V.  D.a}',  670. 

Hulme  V.  Iluime,  574. 

V.  Tenant,  123,  632,  634,  641. 

Humberstone  v.  Chase,  32,  845. 
Humble  v.  Bill,  435,  454,  455,  459. 

Hume  V.  Edwards,  797. 

Humphreston's  case,  36,  37. 

Humphry's  estate,  in  re,  895. 

Humphrey  v.  ]\lorse,  873. 

Humpherey  v.  Richards,  642. 

Humphreys  v.  HoUis,  844. 

Hungate  v.  Hungate,  200. 

Hungerford  v.  Earle,  476. 

Hunt  V.  Baker,  131. 

V.  Bateraan,  747. 

V.  Coles,  665. 

Huntingdon  (Earl  of)  v.  The  Countess, 
721. 

Hunton  v.  Davies,  739. 

Hurly,  ex  parte,  422. 

Husband  v.  Pollard,  94. 

Huskisson  v.  Bridge,  171. 

Hussey  v.  Grills,  615,  617. 

v.  Markham,  233. 

Hutcheon  v.  Mannington,  816. 

Hutchcson  v.  Hammond,  182,  195,  196, 
513,  517. 

Hutchins  v.  Lee,  61,  177,  178. 

Hutchinson  v.  Hutchinson,  526,  704. 

V.  Massareene,  428. 

V.  Morritt,  318. 

V.  Stephens,  838,  888. 

Townsend,  850. 
V.  Sandj's,  605. 
Simpson,  754. 

Hylton  V.  Hylton,  777. 

Hyne  v.  Redington,  341,  342. 
Hynshaw  v.  Morpeth  Corporation,  198. 

Tbbetson  v.  Ibbetson,  161. 


TABLE    OF    CASES. 


Ixi 


Inchiquin  v.  French,  77. 

Incledon  v.  Northcote,  629,  631. 

IncorporatedSoc'y  V.Richards,  749,  786. 

Inge,  ex  parte,  494,  495. 

Inglefield  v.  Coghlan,  122. 

Ingliss  V.  Grant,  474,  479. 

Ingram,  in  re,  381. 

Inkersole,  ex  parte,  715. 

Inwood  V.  Twyne,  513,  823,  829. 

Irwin  V.  Rogers,  878. 

Isaac  V.  Defriez,  706. 

Isaacs  V.  Weatherstone,  869. 

Isald  V.  Fitzgerald,  224. 

Ithell  V.  Beane,  435. 

Jackson's  case,  725. 
Jackson  v.  Garnett,  476. 

V.  Haworth,  633. 

V.  Hobhouse,  123. 

V.  Hurlock,  190,  194. 

V.  Jackson,  202,  351. 

V.  Kelly,  197. 

V.  Milfield,  839. 

V.Welsh,  218,  224. 

V.  Woolley,  524. 

Jacob  V.  Lucas,  301,  326,  768. 

V.  Shepperd,  480. 

Jacobs  V.  Amyatt,  122. 
Jacomb  v.  Harwood,  316. 
James,  ex  parte,  AQO,  461,  462,  464,  465, 
466,  467,  468,  469,  470,  560. 

V.  Dean,  218,  219,  220,  222,  224. 

V.  Frearson,  237,  241,  243,  244. 

Janaway,  in  re,  832. 
Jarman  v.  Wooloton,  277. 
Jebb  V.  Abbott,  435. 
Jeffereys  v.  Small,  202. 
Jefferies  v.  Harrison,  873. 
Jeiferys  v.  Jeiferys,  94,  99. 
Jenkins  v.  Hiles,  441. 

V.  Jenkins,  250. 

v.  Milford,  588,  591. 

V.  Perry,  489,  490. 

Jenkyn  v.  Vaughan,  93. 

Jenner  v.  Tracy,  734. 

Jennings  v.  Selleck,  177,  216. 

Jerdon  v.  Foster,  832. 

Jervoise,  in  re,  377. 

V.  The  Duke  of  Northumberland, 

141,  142,  144,  145,  154,  158. 
Jesse  V.  Bennett,  854. 
Jessopp  V.  Watson,  183,  184. 
Jesus  College  v.  Bloome,  753. 
Jevon  v.  Bush,  20,  521. 
Jewson  v.  Moulson,  629. 
Johnes  v.  Lockhart,  122. 
Johnson,  ex  parte,  343,  835. 

V.  Arnold,  806,  807. 

V.  Ball,  68. 

V.  Freeth,  128. 

V.  Holdsworth,  52,  672. 

V.  Johnson,  184,  808. 

V.  Kennett,  434,  435,  436,  437,  439, 

444. 

January,  1858. — 5 


Johnson  v.  Legard,  93. 

V.  Smith,  731. 

V.  Telford,  558. 

Johnston  v.  Lloyd,  351. 

V.  Newton,  336. 

V.  Rowlands,  172. 

Johnstone  v.  Baber,  419. 

V.  Lumb,  642. 

Joliffe,  exparte,  372. 

JoUand  ( v.)  319. 

Jolly  v.  Norton,  486. 
Jones,  in  re,  834,  883. 

V.  Ashurst,  29. 

V.  Croucher,  93. 

V.  Del  Rio,  852. 

V.  Foxall,  357,  362,  364. 

V.  Gibbons,  631. 

V.  Goodchild,  324. 

V.  Habbs,  77. 

V.  Harris,  639,  641. 

V.  How,  853. 

V.  James,  854. 

V.  Jones,  387,  388,  391,  399,  403, 

607,  845. 

V.  Kearney,  218,  223,  775. 

V.  Langton,  147. 

V.  Lewis,  296,  332,  345,  595,  875. 

V.  Maggs,  118,  119. 

V.  Matthie,  423. 

V.  Mitchell,  182, 183, 195,  196,  197. 

V.  Morgan,  142,  256. 

V.  Morley,  95. 

V.  Powell,  524. 

V.  Powles,  725. 

V.  Price,  435,  528. 

V.  Reasbie,  680. 

V.  Salter,  124,  130. 

V.  Lord  Say  and  Seal,  247,  248, 

254. 

V.  Scott,  484,  485. 

V.  Torin,  700. 

V.  Turberville,  139,  277,  736. 

v.  Williams,  667. 

Joseph's  Will,  in  re,  377. 

Josling  V.  Karr,  849. 

Josselyn  v.  Josselyn,  597. 

Jov  V.  Campbell,    139,   277,   293,   305, 

311,  313,  725,  758,  773. 
Joyce  V.  Joyce,  713. 
Juxon  V.  Brian,  428. 

Kempf  V.  Jones,  858. 

Kator  V.  Pembroke,  725. 

Kaye  v.  Powel,  585. 

Keane  v.  Robarts,  226,  292,  428,  454, 

455,456,  458,  459,  561. 
Kearnan  v.  Fitzsimon,  238. 
Kearsley  v.  Woodcock,  135. 
Keating  v.  Keating,  416. 
Keble  v.  Thompson,  337,  771,  773. 
Keech  v.  Sandford,  220,  223,  224. 
Keeling  v.  Child,  723. 
Kekewich  v.  Manning,  88,  91,  94. 
V.  Marker,  538. 


LEWIN  ON  THE  LAW  OP  TRUSTS,  ETC. 


Isii 

Kellaway  v.  Johnson,  353,   766,    TTo. 

853. 
Kellettv.  Kellett,  181. 
Kemp  V.  Kemp,  10. 
Kempton  v.  Packman,  218,  222. 
Kendall  v.  Granger,  182. 

V.  Micfield,  17. 

Kenge  v.  Delavall,  640. 
Kennedy  v.  Daly,   174,  280,  325,   721, 
725,  726. 

V.  Turnley,  544,  582. 

Kennell  v.  Abbott,  193,  197. 
Kenney  t.  Browne,  467. 
Kenrick  v.  Lord  Beauclerk,  247,  248. 
Kensey  v.  Langham,  269. 
Kensington  Hastings'  case,  198. 

V.  Dollond,  121,  122,  123. 

Kent,  in  re,  835. 

V.  Jackson,  737,  775. 

Kentish  v.  Newman,  153. 

Keogh  V.  Cathcart,  633. 

Keon  V.  Magawly,  844. 

Kettle  V.  Hammond,  477. 

Kettleby  v.  Atwood,  798. 

Kidnev  v.  Koussmaker,  196,  471,488, 

738' 752. 
Kilbee  v.  Sneyd,  290,  292,  294,  314,  316, 

336,  461,  463,  465,  777. 
Kildare   (Earl  of)  v.  Eustace,   10,  30, 

678. 
Killett  V.  Killett,  179. 
Killick,  ex  parte,  121. 

V.  Flexney,  217,  220,  460,  465. 

Kilpin  V.  Kilpin,  56,  61. 
Kilvington  v.  Gray,  813. 
Kincaid,  in  re,  370. 
Kinder  v.  Miller,  204,  206. 
Kinderley  v.  Jervis,  285. 
King  V.  AylofiF,  28,  287. 

,  exparte,  771,  773. 

T.  Ballett,  689. 

V.  Boston,  205. 

V.  Archbishop  of  Canterbury,  543. 

V.  Denison,  39,  179,  180.  18'l. 

V.  Leach,  836,  837,  839. 

V.  Marissal,  649. 

V.  Mildmav,  260. 

V.  Mullins",  374. 

V.  Turner,  834. 

King's  Mortgage,  in  re,  264. 

King  (The)  v.  St.  Catharine's  Hall,  495. 

V.  Coggan,  324. 

V.  Daccombe,  675,  677. 

V.  De  la  Motte,  649,  650,  674. 

(The)  V.  Egginton,  758. 

V.  Holland,  11,  12,  43,  132. 

V.  Jenkins,  19. 

V.  Lambe,  673. 

V.  Portington,  62,  71. 

V.  Smith,  673. 

V.  Trussel,  136. 

V.  Wilson,  324. 

V.  Winstanley,  424. 

Kingdome  v.  Bridges,  210,  216. 


Kingsman  t.  Kingsman,  70,  74. 
Kingston  v.  Lorton,  168,  731. 

(Earl  of)  V.  Lady  Pierepoint,  311. 

Kirbv  V.  Mash,  718,  875. 
Kiricke  v.  Bransbey,  179. 
Kirk  V.  Clark,  844,  848. 

V.  Paulin,  122. 

V.  Webb,  204,  206. 

Kirkbv  v.  Dillon,  648,  650. 

Kirkm'an  t.  Miles,  800,  823. 

Kirkpatrick's  Trust,  348. 

Kirwan  v.  Daniel,  476,  482,  483. 

Kitchen  v.  Calvert,  136. 

Knatchbull  t.  Fearnhead,  375,  765,  768. 

Knight  V.  Boughton,  169. 

v.  Knight,  130,  168,  169,  170,  171, 

172, "l73,  631. 

v.  Majoribanks,  460,  465. 

V.  Martin,  367. 

V.  Pechej-,  204. 

V.  Earl  of  Plymouth,  343,  351. 

V.  Selby.  141. 

Knights  V.  Atkyns,  797. 

Knott  V.  Cotte,  102,  172,  364,  877. 

Knowles  v.  Spence,  731. 

Knox  V.  Kelly,  746. 

Knye  t.  Moore,  846,  848. 

Lacev,  exparte,  318,  460,  461,462,463, 

464,  465,  466,  468,  469,  473. 
Lachton  v.  Adams,  372. 
Lacon  v.  Lacon,  734. 
Lad  V.  London  City,  198. 
Ladbroke,  exparte,  422. 
Ladbrook  v.  Bleaden,  234. 
Lade  v.  Halford,  590. 

V.  Lade,  200. 

Laffan.  in  ie,  714. 
Lake  v.  Craddock,  202. 

V.  De  Lambert,  34,  711. 

V.  Gibson,  201,  202. 

Lamas  v.  Bavly,  205. 

Lamplugh  v'  Lamplugh,  39,  207,  209, 

210,  212,  215. 
Lanauze  v.  Malone,  357. 
Lancashire  v.  Lancashire,  530,  581. 
Lancy  v.  Fairechild,  798. 
Landen  v.  Green.  873. 
Lander  v.  Weston,  349,  357,  451. 
Lane  v.  Debenham,  301,  419,  530,  536, 

538. 
T.  Dighton,  204,  206,  756,  759,  762, 

763. 

V.  Wroth,  291. 

Langford  v.  Auger,  263. 

V.  Gascoyne,  290,  293,  311,  774. 

V.  Mahony,  561. 

Langham  v.  Sandford,  59,  69,  182. 
Langhoru  v.  Langhorn,  895. 
Langley  v.  Fisher,  325,  721. 

V.'  Hawk,  870. 

V.  Sneyd,  680. 

Langstafte  v.  Fenwick,  546. 
Langston  v.  Ollivant,  339. 


TABLE    OF    CASES. 


Ixiii 


Langton  v.  Astrey,  724,  726, 

V.  Horton,  279. 

V.  Tracy,  482. 

Landsdowne  v.  Landsdowne,  753. 
L'Apostre   v.  Le   Plaistrier,   274,  275, 

278. 
La  Terriere  v.  Bulmer,  814. 
La  Touche  v.  Dunsany,  845. 
Lavender  v.  Stanton,  432. 
Law,  in  re,  568,  837,  839. 

V.  Bagwell,  748. 

V.  Skinner,  476,  477. 

Lawes  v.  Bennett,  808. 
Lawless  v.  Shaw,  173. 
Lawrence  v.  Beverley,  796. 

V.  Bowie,  767. 

V.  Maggs,  222,  385,  386,  39C. 

Lea  V.  Grunby,  643. 
Leach  v.  Dean,  93. 

V.  Leach,  168. 

Leahy  v.  Dancer,  660,  661. 
Lear  v.  Leggett,  135. 
Lechmere  v.  Earl  of  Carlisle,  719.  792, 
793,  798,801,  807,  825. 

V.  Lavie,  168,  169,  171. 

V.  Lechmere,  797,  798,  799.  802, 

805. 
Ledwich,  in  re,  710. 
Lee  V.  Alston,  753. 

V.  Brown,  513,  517,  519. 

V.  Delane,  368. 

V.  Howlett,  608. 

V.  Lee,  361. 

V.  Prieaux,  122. 

V.  Young,  538,  542,  543,  712. 

Leech  v.  Leech,  97. 

Leeds  (Duke  of)  v.  Amherst,  737,  743. 

V.  Munday,  263. 

Lees  V.  Sanderson,  314. 

Lefroy  V.  Flood,  172,  173. 

Legard  v.  Hodges,  174. 

Legate  v.  Sewell,  154,  603. 

Legg  V.  Goldwire,  148. 

Leigh  V.  Barry,  302,  305,  310,  476. 

Leister  v.  Foxcroft,  70. 

Leith  V.  Irvine,  547,  556. 

Lemaitre  v.  Bannister,  169,  170. 

Leman  v.  Whitley,  178. 

Lenaghan  v.  Smith,  850. 

Lench  V.  Lench,  204,  205,  206,  756,  762, 

774. 
Le  Neve  v.  Norris, 
Lennard  v.  Curzon,  845. 
Leonard  v.  Baker,  474,  475. 

V.  Lord  Sussex,  154. 

Lesley's  case,  225. 
Leslie  V.  Baillie,  367. 

V.  Birnie,  498. 

V.  Duke  of  Devonshire,  182,   188, 

189. 

V.  Guthrie,  276. 

Lethieullier  v.  Tracy,  251,  255,  678. 
Lever  v.  Andrews,  200. 
Levet  V.  Needhain.  177.  179. 


Levett's  Trust,  in  re,  378. 

Lewellin  v.  Cobbold,  865. 

V.  Mackworth,  719,  729. 

Lewes  v.  Lewes,  135. 

,  in  re,  883. 

Lewin  v.  Okeley,  489. 

Lewis,  ez  parte,  423. 

(Otto,)  ex  parte,  833. 

V.  Hillman,  378. 

V.  Lane,  46,  616. 

V.  Lewis,  56. 

v.  Madocks,  174,  759,  762,  763. 

V.  Lord  Zouche,  651. 

Litchfield  v.  Baker,  810. 

Liley  v.  Hay,  169,  698. 

Lillia  V.  Airey,  633. 

Limbrey  v.  Gurr,  132. 

Limbroso  v.  Francia,  395. 

Linch  V.  Gappy,  360. 

Lincoln  Primitive  Methodist  Chapel, 
in  re,  718. 

(Countess  of)  v.  Duke  of  New- 
castle, 146,  152,  159,  161,  163. 

V.  Allen,  359. 

V.  Windsor,  320,  550. 

V.  Wright,  306,  316,  768,  771,  775. 

Lindon  v.  Sharp,  477. 

Lindow  v.  Fleetwood,  164,  166. 

Lindsell  v.  Thacker,  121,  264. 

Lingard  v.  Bromley,  768,  846. 

Lingen  v.  Sowray,  796,  818,  824. 

Linton  v.  Bartlett,  480. 

Lismore  (Lord,)  in  re,  795. 

Lister's  Hospital,  in  re,  378,  785. 

Lister  v.  Lister,  461,  462,  468,  471,  738. 

Little,  ex  parte,  427,  591. 

Littlehales  v.  Gascoyne,  359,  875. 

Livesey  v.  Harding,  538,  542. 

V.  Livesey,  373. 

Lloyd  v.  Baldwin,  435,  436. 

V.  Loaring,  851. 

V.  Smith,  853. 

V.  Spillet,  15,  57,  61, 177,  178,  179, 

180,  181,  229,  878. 

V.  Wentworth,  180. 

V.  Williams,  369,  488,  489. 

Lloyde  v.  Gregory,  36,  37. 

Loader  v.  Clarke,  776. 

Lock  V.  Lock,  384,  395,  402. 

Locke  V.  Lomas,  434,  523. 

Lockey  v.  Lockey,  730,  754,  755. 

Lockwood  V.  Abdy,  226,  561. 

Lockyer  V.  Savage,  135. 

Locton  V.  Locton,  173. 

Loddington  v.  Kime,  484. 

Lodge  V.  Lyseley,  650,  655,  656. 

Lofts,  ex  parte,  479. 

Lomax  v.  Ripley,  71,  73. 

London  Bridge  Act,  in  re,  427. 

London,  Brighton,  &c..  Railway  Com- 
pany, in  re,  718,  785. 

London  Gas  Light  Company  v.  Spottis- 
woode,  768,  849,  854. 

London  (City  of)  v.  Garway,  182,  183. 


Ixiv 


LEWIN    ON   THE    LAW    OF    TRUSTS,    ETC. 


London  v.  Richmond,  851. 
Long.v.  Yonge,  852. 
Longdon  v.  Simson,  114. 
Longmore  v.  Broom,  359,  703. 
Longuet  v.  Hockley,  273. 
Lonsdale  (Earl  of)  v.  Beckett,  577. 
Lord  V.  Bunn,  135,  450,  712. 

V.  Godfrey,  354,  811. 

Lorimer,  in  re,  380,  381. 
Louch,  ez  parte,  478,  479. 
Love  V.  Bade,  751,  786. 
Love  V.  Gaze,  59. 
Lovegrove,  exparte,  557. 

V.  Cooper,  688. 

Loveridge  v.  Cooper,  605,  607. 
Lovett's  Exhibition,  inre,  713. 
Low,  exparte,  479. 

V.  Carter,  765. 

Lowe  V.  Morgan,  842. 

Lowes  V.  Hackward,  196. 

Lowry  v.  Fulton,  232,   235,   241,   242, 

243,  289. 
Lowson  V.  Copeland,  328,  365,  878. 
Lowther  v.  Carlton,  726. 
Loyd  V.  Griffith,  427. 

V.  Read,  200,  211,  212,  214,  216. 

Lucas,  exparte,  380. 

Luckin  v.  Rushworth,  217,  224. 

Ludlow,  ex  parte,  828. 

(Corporation  of)  v.  Greenhouse, 

723,  777,  779,  780,  781,  782,  783. 
Lumb  V.  Milnes,  122. 
Lunn's  Charity,  in  re,  838. 
Lupton  V.  White,  337. 
Lushington,  ex  parte,  505. 
Lush's  Estate,  in  re,  885. 
Lydiatt  v.  Foach,  503,  507. 
Lyne,  exparte,  299. 

V. ,  122. 

Lyon  V.  Baker,  320,  550. 
Lyse  V.  Kingdon,  343,  767,  875. 
Lyster  v.  Burroughs,  174. 
V.  Dolland,  202,  665. 

Maberly  V.  Turton,  517,  697. 
M'Carthy  v.  Daunt,  747. 

V.  Decaix,  778. 

Macartney  v.  Blackwood,  466,  752. 
Macauley  v.  Philips,  629. 
M'Donald  v.  Bryce,  116,  118. 

V.  Hanson,  421. 

M'Donel  v.  Hesilrige,  93. 
Macdonald  v.  Walker,  265. 
Macdonnell  v.  Harding,  333,  775. 
Mace  V.  Cadell,  278. 
Macey  v.  Shurmer,  168. 
Mackenzie  v.  Makenzie,  476,  891,  905 
Mackie  v.  Mackie,  815. 
M'Key,  exparte,  518. 
Mackinnon  v.  Stewart,  476,  481,  666 
Mackreth  v.  Symmons,  725. 
M'Cleland  V.  Shaw,  183,  196. 
M'Gachen  v.  Dew,  326,  771    849 
M'Hardy  v.  Hitchcock,' 864,' 866* 


Macleod  v.  Annesley,  345,  349. 
M'Leod  V.  Drummond,  454,  455,  456, 

457,  458,  459. 
Macnab  v.  Whitbread,  168,  170. 
Macnamara  v.  Jones,  556. 
Macpherson  v.  Macpherson,  814. 
Maddison  v.  Andrew,  543. 
Madoc  V.  Jackson,  700. 
Madox  V.  Jackson,  848. 
Madge  v.  Riley,  839. 
Magawley's  Trust,  in  re,  93. 
Maggeridge  v.  Grey,  710. 
Maguire  v.  Scully,  147,  149. 
Mahon  v.  Savage,  542,  699,  706. 

(Lord)  v.  Earl  Stanhope,  418. 

Maire,  exparte,  835. 
Maitland  v.  Bateman,  329. 
Major  V.  Lansley,  645,  694. 
Malcolm  v.  O'Callaghan,  557. 
Malim  v.  Barker,  168. 

V.  Keighley,  168,  169,  171. 

Mallabar  v.  Mal'labar,  181,  196,  197. 
Malone  v.  Geraghty,  718,  848. 

V.  O'Conner,  168,  170. 

Malzy  V.  Edge,  240,  244. 

Manchester  (Mayor  of)  v.  Manchester 

(Overseers  of,)  272, 
Manchester  New  College,  inre,  781,  782, 

783. 
Mangles  v.  Dixon,  729. 
Manifold,  inre,  837. 
Manners  v.  Furze,  869. 
Manning  v.  Thesiger,  849,  851. 
Manning's  Trust,  895. 
Mansell  v.  Mansell,  405,  406,  724,  725, 
764. 

V.  Vanghan,  299,  528,  536. 

Mansfield  (Earl  of)  v.  Ogle,  749. 

V.  Shaw,  870. 

Mant  V.  Leith,  345. 
Maplett  V.  Pocock,  873. 
Mapp  V.  Elcock,  179. 
Mara  v.  Manning,  640,  777. 
March  v.  Russell,  765,  777. 
Margetts  v.  Barringer,  122. 
Marker  v.  Marker,  778. 
Markwell's  Legacy,  in  re,  378,  785. 
Marlborough  (Duke  of)  v.  Lord  Godol- 
phin,  701,  703. 

V.  St.  John,  514. 

Marlow  v.  Pitfield,  37,  485. 

V.  Smith,  262,  279. 

Marriot  v.  Marriot,  70. 

Marriott  v.  Kinnersley,  306,  764. 

V.  Turner,  183. 

Marryat  v.  Marryat,  865. 

V.   Townley,   144,   149,   152,  153, 

156,  164. 

V.  The  Bank,  33. 

Marsh  ( v.)  823. 

,  ex  parte,  277. 

V.  Hunter,  341,  356. 

Marshall,  ex  parte,  263,  715. 
V.  Blew,  594. 


TABLE    OF    CASES. 


Isv 


Marshall  v.  Bousfield,  153,  154. 

Y.  Bremner,  810. 

V.  Holloway,  111,  191,  549,  554. 

V.  Sladden,  418. 

Martin,  ex  parte,  277. 

V.  Hooper,  487. 

V.  Margham,  136. 

V.  Martin,  51,  53,  153,  318. 

V.  Persse,  235,  874. 

V.  Sedgwick,  613. 

Marwood  v.  Turner,  604. 
Mary  England,  m  re,  517. 
Masham  v.  Harding,  489. 
Mason  v.  Bogg,  485. 

V.  Day,  831. 

V.  Limbury,  167. 

V.  Mason, 

Massam  v.  Harding,  690. 
Masselin's  Will,  in  re,  378. 
Massey,  ex  parte,  277. 

v.  Banner,  296,  332,  333. 

T.  Parker,  121,  122,  124, 

Master  v.  De  Croismar,  43,  153. 

T.  Fuller,  635. 

Mather  v.  Norton,  439. 

V.  Priestman,  422. 

V.  Thomas,  265. 

Mathison  v.  Clarke,  319,  320,  546. 
Matson  y.  Swift,  807. 
Matthew  y.  Hanbury,  138. 
Matthews  y.  Bagshaw,  547. 
Matthew  y.  Brise,  333,  342,  352,  753. 

Y.  Gabb,  613,  614. 

Matthie  y.  Edwards,  414,  423. 
Maugham  y.  Mason,  183,  195,  196. 
Maundrell  y.  Maundrell,  191. 
MaYor  Y.  Davenport,  238. 
Maxwell  y.  Ashe,  223. 

Y.  Wettenhall,  489,  490. 

May  Y.  Selby,  851. 

V.  Taylor,  249,  269. 

Maynard's  Settlement,  in  re,  890. 
Maynwaring  y.  Maynwaring,  822,  823. 
Mead  y.  Lord  Orrery,  454,  455, 456,  459, 

460,  725. 
Meader  v.  M'Cready,  362. 
Meaghan,  in  re,  136. 
Medley  v.  Horton,  130. 

Y.  Martin,  279. 

Medlicott  y.  O'Donel,  732,  734. 

Meek  y.  Kettlewell,  81,  83,  84,  88,  91, 

92,  93,  94. 
Meggison  y.  Moore,  168,  172. 
Meggott  Y.  Meggott,  755. 
Megod's  case,  8,  20. 
Mehrtens  y.  Andrews,  353,  ^43. 
Meinertzhagen  y.  Davis,  40,  576,  577. 
Melland  y.  Gray,  363. 
Melling  v.  Leak,  586,  590,  748. 
Mennard  y.  Welford,  574. 
McHardy  y.  Hitchcock,  864,  866. 
Meredith  y.  Heneage,  167, 168, 169,  170, 

171,  172. 
Merest  y.  James.  16. 


Merry,  ex  parte,  836. 
Mertins  Y.  Jolliffe,  726. 
Mestaer  y.  Gillespie,  277. 
Metcalf  Y.  Scholey,  665. 
Metham  y.  Devon,  67,  77. 
Meure  v.  Meure,  153,  156. 
Meux  V.  Bell,  608,  610,  611,  612. 

Y.  Howell,  474,  475. 

V.  Maltby,  851. 

Meyer  v.  Simonsen,  816. 

Y.  Montriou,  867. 

Meyrick's  Trust,  in  re,  888. 
McFadden  v.  Jenkyns,  61,  91. 
Middleton  v.  Dodswell,  522,  870,  871. 

v.  Losh,  120. 

Y.  Reay,  544,  582. 

V.  Spicer,  42,  198,  318,  324. 

Milbank  v.  Collier,  851. 
Miles  Y.  Duruford,  138,  454,  456. 
Millfield,  in  re,  834,  837,  839. 
Millard's  case,  725. 

Y.  Eyre,  711. 

Miller's  case,  19. 

v.  Huddlestone,  853. 

v.  Knight,  839. 

V.  Priddon,  578,  581. 

Y.  Race,  274,  275,  757,  758. 

Milles  v.  Milles,  387,  392. 
Milligan  v.  Mitchell,  497,  723. 
Mills  Y.  Mills,  341,  353,811. 

v.  Osborne,  338. 

Milnes  v.  Cowley,  763. 
Milsington  v.  Mulgrave,  386. 
Milsintown  v.  Earl  of  Portmore,  387. 
Miltown  v.  Trimbleston,  901. 
Minchin  v.  Nance,  174. 
Mitchell  Y.  Nixon,  572. 
Mitchelson  v.  Piper,  524. 
Mitford,  ex  parte,  771. 

Y.  Mitford,  276,  629,  631. 

Mogg  Y.  Baker,  475. 

V.  Hodges,  183,  189. 

Moggridge  v.  Thackwell,  693. 
Mohun  Y.  Mohun,  872,  874. 
Molony,  in  re,  838. 

Y.  "Kennedy,  642. 

Y.  L'Estrange,  472. 

Molton  v.  Camroux,  27. 

Money,  in  re,  378. 

Montefiore,  in  re,  772. 

Montford  (Lord)  v.  Lord  Cadogan,  238, 

241,  385,  387,  392,  402,  766,  768,  769, 

770,  774. 
Montgomerie  v.  Bath  (Marquis  of)  842. 
Montgomery  v.  Johnson,  235,  243. 
Montmorency  v.  Devereux,  472. 
Monypenny  v.  Bristow,  751,  753,  754, 

756. 
Moody,  ex  parte,  772. 

Y.  in  re,  834. 

v.  Matthews,  223. 

V.  Walter,  405,  408,  409,  910. 

Moon  v.  Blake,  847. 

Moons  v.  De  Bernales,  361,  766,  771,  772. 


Ixvi 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


Moor  V.  Black,  Too. 
Moorcroft  v.  Dowding,  63,  290. 
Moore,  ex  parte,  277. 

V.  Cleghorn,  141. 

V.  Frowd,  320,  549,  553,  874. 

V.  Hussey,  34. 

V.  Moore,  130,  643. 

V.  Scarborough  (Earl  of),  643. 

V.  Vinten,  837,  847. 

Morden  College  case,  502. 
Morgan,  ex  parte,  263,  465,  737. 
Morgan  v.  Horseman,  480. 

V.  Morgan,  116,  119,  623,  624,  753. 

V.  Sherrard,  686. 

Moriarty  v.  Martin,  167. 
Morice  v.  Bishop  of  Durham,  169,  181. 
Morison  v.  Morison,  319,  553. 
Morley's  Trust,  in  re,  263,  264. 
Morley  v.  Bird,  201. 

V.  Lord  Hawke,  774. 

V.  Morley,  332. 

Mornington,  ex  parte,  894. 
Morony  v.  Vincent,  873. 
Morret  v.  Paske,  318. 
Morrice  v.  Bank  of  England,  689. 
Morrill  v.  Lawson,  847,  849. 
Morris  v.  Preston,  573. 

V.  Lavie,  771. 

Morse  v.  Faulkner,  52. 
V.  Langham,  484. 

V.  Eoyal,  461.  463,  464,  470,  471, 

472,  473,  734. 

Mortimer  v.  Davies,  200. 

V.  Ireland,  266. 

v.  Watts,  386,  543. 

Mortlock  V.  Buller,  415,  418. 
Morton  v.  Tewart,  63,  64. 
Moseley  v.  Moseley,  696,  707. 
Moses  V.  Levi,  314,  315. 

Mosley  v.  Ward,  357,  361,  875,  878,  879. 
Mott  V.  Buxton,  247,  269, 
Mount,  in  re,  835. 
Mousley  v.  Carr,  362,  363,  876. 
Moyle  V.  Moyle,  232,  317,  336,  351. 
Moyse  v.  Gyles,  201. 
M'Queen  v.  Farquhar,  726. 
Muckleston  v.  Brown,  67,  68,  71,  72,  73, 

138,  178,  182,  773. 
Mucklow  V.  Fuller,  240,  318. 
Mulcahy  v.  Kennedy,  734. 
Mulvany  v.  Dillon,  217,  220,  224,  461, 

465. 
Mumma  v.  Mumma,  39,  209,  212. 
Munch  V.  Cockerell,  293,  362,  766,  778, 

845,  848. 
Mnndy  v.  Mundy,  755. 
Murless  v.  Franklin,  200,  207,  209,  214, 

215. 
Murphy,  in  re,  136. 
Murray  v.  Barlee,  634,  635,  636,  641. 

V.  Palmer,  472. 

V.  Pinkett,  756. 

Murrell  v.  Cox,  310,  315. 

Myler  v.  Fitzpatrick,  226,  561,  562. 


Nab  V.  Nab,  61,  63,  64,  71. 
Nail  V.  Punter,  774. 
Nairn  v.  Majoribanks,  514. 
Nantes  v.  Corrock,  629,  641,  642. 
Napier  v.  Napier,  369. 
Nash  V.  Coates,  253,  254. 

v.  Dillon,  873. 

V.  Preston,  9,  260. 

v.  Smith,  179. 

Naylor  v.  Arnitt,  522. 

V.  Winch,  460,  465. 

Neale  v.  Davies,  325. 

Neate  v.  Duke  of  Marlborough,  650, 652, 

658,  662,  663. 
Needham,  in  re,  233,  237. 
Needler's  case,  774. 

V.  Bishop  of  Winchester,  34. 

Neeves  v.  Burrage,  524. 

Nelson  v.  Bridport,  54,  55. 

Nesbitt  V.  Tredennick,  217,  218,  222. 

Nettleton  v.  Stephenson,  118. 

Nevarre  v.  Button,  729. 

Nevil  V.  Saunders,  247. 

New  V.  Jones,  320,  546,  549,  550,  557. 

Newburgh  v.  Bickerstaffe,  753,  755. 

V.  Newburgh,  71,  75. 

Newcastle  (Duke  of)  v.  Countess  of  Lin- 
coln, 146,  150. 
Newcomen  v.  Hassard,  639,  645,  646. 
Newlands  v.  Paynter,  44,  121,  125, 131. 
Newman  v.  Jones,  774. 

v.  Warner,  533,  712. 

Newport's  case,  828. 

Newton  v.  Askew,  92,  94,  599. 

V.  Bennet,  359,  360,  488,  489,  876, 

877. 

V.  Chantler,  477,  480. 

v.  Earl  of  Egmont,  852. 

v.  Pelham,  74. 

V.  Preston,  204. 

Charity,  in  re,  782. 

Nicholls,  in  re,  713. 

v.  Crisp,  183. 

Nicholson  v.  Falkiner,  857,  858. 

V.  Tutin,  483. 

Nickolson  v.  Knowles,  226. 

Nicloson  V.  Wordsworth,  233,  236,  237. 

Niel  V.  Morley,  27. 

Nightingale's  Charity,  718. 

V.  Earl  Ferrers,  37. 

V.  Lawson,  383,  384,  396. 

Noad  V.  Backhouse,  870. 

Noble  V.  Fry,  626. 

V.  Meymott,  233,  567,  572,  851. 

Noel  V.  Lord  Henley,  190,  813. 

V.  Jevon,  11,  260,  279. 

Nokes  V.  Seppings,  867. 

Norbury  v.  Calbeck,  878. 

v.  Norbury,  343. 

NorclifiF  V.  Worsley,  603. 

Norden  v.  James,  479,  497. 

Norfolk's  case  (Duke  of),  104,  131, 132, 
681,  751. 

Norfolk  (Duke  of)  v.  Browne,  177. 


TABLE    OF    CASES. 


Ixvii 


Norris  v.  Le  Neve,  224,  225. 

V.  Norris,  349,  873,  874. 

V.  Wright,  340,  345,350,  356,  357, 

853,  858. 
North  V.  Champernoon,  G02,  603. 

V.  Crorapton,  181. 

V.  Williams,  602,  603,  604. 

Norton  v.  Frecker,  754. 

V.  Pritchard,  580. 

V.  Turvill,  37,  633,  642,  729. 

Norway  v.  Norway,  234,  874. 

Nowlan  v.  Nelligan,  168. 

Nugent  V.  GiflFord,  454,  455,  456,  457, 

459. 
Nunn  V.  Wilsmore,  474,  475,  477,  487. 
Nurton  v.  Nurton,  454,  455. 

Oakes  v.  Strachey,  808,  811. 
Oakley  v.  Young,  252, 
Gates  V.  Cooke,  250. 
O'Brien  v.  O'Brien,  356,  357. 
O'Callaghan  v.  Cooper,  876. 
O'Connor  v.  Spaight,  753. 
Odell,  in  re,  568. 
O'Dowda  V.  O'Dowda,  659. 
O'Fallon  v.  Dillon,  658,  659. 
O'Ferrall  v.  O'Ferrall,  384. 
Oglander  v.  Oglander,  713. 
Ogle  V.  Cook,  183. 
O'Gorman  v.  Comyn,  658,  659,  660. 
O'Hara  v.  O'Neil,  63. 
O'Herlihy  v.  Hedges,  318. 
Oke  V.  Heath,  195,  197. 
O'Keefe  v.  Calthorpe,  712. 
O'Kelly  V.  Glenny,  734,  739. 
Oldham  v.  Hughes,  798,  816,  817. 

V.  Litchford,  71. 

Oliver  v.  Court,  317,  415,  421,  424,  467, 

470,  471. 
Omerod  v.  Hardman,  428. 
Ommaney,  ex  parte,  835,  901. 
O'Neill  V.  Lucas,  118. 
Onslow's  (Speaker)  case,  820. 
Onslow  V.  Lord  Londesborough,  425. 

V.  Wallis,  322,  323,  596. 

O'Reilly  v.  Alderson,  574,  710. 

Ord  V.  Noel,  414,  415,  422,  423,  424. 

V.  White,  729. 

Orgill,  ex  parte,  715. 

Ormonde  (Marquis  of)  v.  Kynersley,  225. 

Ormsby,  in  re,  545,  546,  557. 

Orr  V.  Newton,  241,  330. 

Orrett  v.  Corser,  773. 

Orrok  v.  Binney,  458. 

Osborne  ( v.)  373,  583. 

V.  Fallows,  842. 

V.  Foreman,  853. 

Osmond  v.  Fitzroy,  777. 
Oswald  V.  Thompson,  478. 
Ottley  V.  Browne,  139,  773. 

V.  Gilby,  599,  873. 

Otway  V.  Hudson,  795. 

V.  Wing,  633. 

Ousley  V.  Anstruther,  356. 


Overton  v.  Bannister,  39,  373. 
Owen  V.  Aprice,  755. 

V.  Body,  476. 

V.  Foulkes,  461. 

V.  Williams,  217,  218,  220,  224. 

Owens  V.  Dickenson,  635,  638,  642. 
Oxenden  v.  Lord  Compton,   798,  825, 

826,  827,  828,  829,  830. 
Oxford  (University  of)   v.  Richardson, 

753. 
Oxley,  ex  parte,  135. 

Packer  v.  Wyndham,  629,  631. 
Padbury  v.  Clark,  816,  823. 
Paddington  Charities,  in  re,  106. 
Page,  ex  parte,  716. 

V.  Adam,  435,  437,  440,  444. 

V.  Broom,  425. 

V.  Cooper,  416,  417. 

V.  Leapingwell,  182,  183,  195. 

V.  Way,  134. 

Paine  v.  Meller,  174,  175. 
Painter,  ex  parte,  715,  716. 
Palmer,  ex  parte,  715. 

V.  Carlisle,  ('  '^-d'* 

V.  Jones,  766. 

V.  Mitchell, 

V.  Simmonds,  168,  171. 

V.  Young,  218. 

Palmes  v.  Danby,  830. 

Pannell  v.  Hurley,  226,  227,  459,  562. 

Panton  v.  Panton,  337. 

Papillon  V.  Voice,  144,  154,  562. 

Parke's  Charity,  503,  781,  782. 

Parker  v.  Bloxam,  319. 

V.  Brooke,  121,  643,  694,  727,  728. 

V.  Carter,  586,  617,  622,  623. 

Parkes  v.  White,    120,    123,    124,  406, 

460,  462,  470,  640,  643,  774. 
Parkinson's  Trust,  in  re,  169. 
Parnham  v.  Hurst,  276. 
Parr  v.  Attorney-General,  31. 
Parrot  v.  Treby,  877. 
Parrott  v.  Palmer,  753. 
Parry's  Trust,  in  re,  381. 
Parry,  in  re,  377. 

V.Warrington,  813. 

Parsons  v.  Baker,  168. 

V.  Potter,  235. 

Partridge  v.  Pawlet,  201. 
Passingham  v.  Selby,  489. 
- —  V.  Sherborne,  505,  579. 
Pattinson,  in  re,  883,  906. 
Pattison  v.  Hawkesworth,  735. 
Paul  V.  Birch,  274. 

V.  Compton,  167,  168,  172. 

Pawlett,  ex  parte,  348. 

V.  Attorney-General,  11,  30,  103. 

260,  279,  280,  284,  285,  677,  725. 
Payne,  ex  parte,  168,  169,  836. 

V.  Barker,  595. 

V.  Compton,  725. 

Peacham  v.  Daw,  867. 

Peachy  v.  Duke  of  Somerset,  283. 


Ixviii 


LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 


Peacock  v.  Monk,  633,  643,  645. 
Peake  v.  Ledger,  851. 

V.  Penlington,  164. 

Pearce  v.  Gardner,  416,  527. 

V.  Newlyn,  725. 

V.  Slocombe,  489,  490. 

Pearse  v.  Baron,  165. 

V.  Green,  599. 

Pearson  v.  Belchier,  739. 

V.  The  Bank  of  England,  33. 

V.  Lane,  598,  821. 

V.  Pulley,  731,  734. 

Peart,  ex  parte,  381. 

Pease,  ex  parte,  278. 

Peat  V.  Crane,  351. 

Peatfield  v.  Benn,  582. 

Pechel  V.  Fowler,  415,  422,  723. 

Peers  v.  Ceeley,  366,  558. 

Pelly  T.  Maddin,  200. 

Penfold  V.  Bouch,  181,  595,  875. 

Penn  v.  Lord  Baltimore,  10,  30,  31,  47, 

50. 
Penne  v.  Peacock,  526. 
Pennell  v.  Deffell,  333,  760. 

V.  Home,  742. 

Pennefather,  in  re,  713. 
Penny  v.  Pretor,  835. 

V.  Turner,  703,  704. 

Pentland  v.  Stokes,  720. 
Pepper  v.  Tuckey,  712,  838. 
Peppercorn  v.  Wayman,  237. 
Perkins  v.  Baynton,  359,  361. 

V.  Bradley,  28. 

Perrott  v.  Perrott,  408. 
Perry  (in  the  goods  of)  234. 

V.  Knott,    10,    16,  17,    768,    845, 

846,  850,  853,  854. 

V.  Phelips,  762. 

Persse  v.  Persse,  94. 
Petit  V.  Smith,  20. 
Petre  v.  Bruin,  488. 

V.  Petre,  745,  746. 

Pettiward  v.  Prescott,  752. 
Petty  V.  Styward,  201. 
Peyton  v.  Bury,  299,  536. 

V.  M'Dermott,  835. 

Phayre  v.  Peree,  725. 
Phelps,  ex  parte,  711. 
Phene  v.  Gillan,  563. 
Philips  V.  Brydges,10, 16,  17,  600,  604, 
615,  792. 

V.  Bury,  492. 

V.  Everard,  425. 

V.  Philips,  373. 

Phillipott's  Charity,  781. 

Phillippo  V.  Munnings,  243,   356,    729, 

763,  867. 
Phillips's  Charity,  in  re,  781. 

V.Buckingham,    (Duke  of)    850. 

exparte,  825,  826,  827,  829,  830. 

V.  Brydges,  142. 

V.  Eastwood,  516. 

v.  Garth,  701,  7o7. 

V.  Phillips,  181,  183.  197. 


Pbillipson  v.  Gatty,  345,  356,  357,  737, 

849. 
Phillpotts  V.  Phillpotts,  138. 
Philpot,  ex  parte,  479. 
Phipps  V.  Lord  Ennismore,  136. 

V.  Kelynge,  111. 

Pickering  V.  Pickering,   353,  354,  811, 
812 

v.  Lord  Stamford,  734,  737,  739. 

V.  Vowles,  217,  218,  222,  263,  386. 

Pickett  V.  Loggon,  752. 
Pickstock  V.  Lyster,  474,  475,  476. 
Pickup  V.  Atkinson,  810. 
Pierce  v.  Scott,  429,  458. 
Piercy  v.  Roberts,  133. 
Pierson  v.  Garnet,  167,   168,    169,  170, 
696. 

V.  Shore,  217,  831. 

Piety  V.  Stace,  357,  359,  361,  875. 
Pike  V.  White,  45. 
Pilkington  v.  Bayley,  57. 

V.  Boughey,  168,  182. 

Pimm  V.  Insall,  285. 

Pink  V.  De  Thuisey,  538. 

Pitt  V.  Bonner,  767,  768. 

Pitt  or  Pit  V.  Hunt,  12,  631,  648. 

Y.  Pelham,  173,  694. 

Pitts  V.  Edelph,  726. 

Plasket  V.  Lord  Dillon,  648,  650,  651. 

Platel  T.  Craddock,  326. 

Piatt  V.  Sprigg,  407. 

Playfair  v.  Cooper,  748. 

Playters  v.  Abbott,  390,  397,  403. 

Plenty  v.  West,  575. 

Plucknett  v.  Kirke,  650,  684. 

Plunket  V.  Penson,   488,  684,  685,  689, 
690. 

Plunkett,  ex  parte,  713. 

Plyers  Trust,  in  re,  885,  896. 

Plymouth  v.  Hickman,  64. 

Pocock  V.  Reddington,  338,  343,   357, 
875. 

Podmore  v.  Gunning,  77. 

Poland  V.  Glyn,  480. 

Pole  V.  Pole,  207,  210,  211,  215. 

Pollard,  exparte,  48. 

v.  Downes,  562. 

Pollexfen  v.  Moore,  234. 

Polley  V.  Seymour,  806,  808. 

Pomfret   (Earl   of)   v.  Lord  Windsor, 
325,  729,  735,  739. 

Pool  Bathurst's  Estate,  in  re,  577. 

Poole  V.  Pass,  595,  596. 

T.  Franks,  871. 

Pooley  Y.  Ray,  740. 

Poor  v.  Mial,  193. 

Pope  Y.  Gwyn,  488. 

Y.  Pope,  170,  171. 

Y.  Whitcombe,  701,  704,  706,  707. 

Porey  v.  Jiixon,  8. 

Porter's  Trust,  in  re,  895. 

V.  Watts,  583. 

Y.  Walker,  477. 

Portington's  (Lady)  case,  58. 


TABLE    OF    CASES. 


Ixix 


Portlock  V.  Gardner,    226,    319,    562, 
730. 

Portsmouth  (Earl  of)  v.  Fellows,  711. 

Potter  V.  Chapman,  22,  536,  538,  543. 

Poulson.  ex parte^  772,  773. 

Poulton,  in  re,  834. 

Povey  V.  Juxon,  59. 

Powdrell  v.  Jones,  627. 

Powel  V.  Price,  149,  725. 

Powell's  case,  487. 

Powell  V.  Cleaver,  353,  808. 

V.  Evans,  328,  351. 

V.  Hankey,  643. 

V.  Matthews,  882,  885. 

V.  Merrett,  325. 

V.  Wright,  851. 

Powerscourt  v.  Powerscourt,  542. 

Powles  v.  Page,  613. 

Powlett  (Eari)  v.  Herbert,  317,  875. 

Powys  v.  Blagrave,  514. 

V.  Mansfield,  216. 

Prankerd  v.  Prankerd,  199,  214. 

Pratt  v.  Colt,  12,  650,  682. 

. V.  Sladden,  181. 

Prendergast  v.  Eyre,  835,  836,  839. 

Prentice  v.  Prentice,  856. 

Preston  v.  Grand  Collier  Dock  Compa- 
ny, 851. 

Prevost  V.  Clarke,  167. 

Price  V.  Berrington,  27. 

• V.  Blakeuiore,  759,  762,  763. 

V.  Byrn,  460,  470. 

V.  Dewhurst,  835. 

V.  Loaden,  562. 

v.  Oneby,  832. 

V.  Price,  81,  84. 

Prichard  V.  Ames,  121,  122,  694. 

Priddy  v.  Rose,  771. 

Pride  v.  Fooks,  118,  318,  344,  764,  876. 

Prideaux,  in  re,  835. 

Primrose  v.  Bromley,  238. 

Prince  v.  Heylin,  735. 

Pring,  ex  parte,  183. 

V.  Pring,  74,  76. 

Prior's  (Lady)  Charity,  in  re,  505. 

V.  Horniblow,  744. 

V.  Penpraze,  279. 

Pritchard  v.  Langher,  330. 

Propert's  purchase,  in  re,  882. 

Projected  Railway,  exparte,  352. 

Prosser,  exparte,  835. 

Proudfoot  V.  Hume,  866,  867. 

Prowse  V.  Abingdon,  489. 

Prytharch  v.  Havard,  839. 
Pugh,  exparte,  370. 

in  re,  634. 

V.  Vaughan,  589. 

Puleston  V.  Puleston,  67. 
Pullen  V.  Middleton,  46. 
Pulling  V.  Tucker,  480. 
Pulteney  v.  Darlington,  758,  792,  796, 
800,  802,  803,  805,  807,  821,  823, 
824,  825. 
V.  Warren,  751,  753,  754,  755. 


Pulvertoft  V.  Pulvertoft,  81,  84,  93,  94, 

98. 
Purdew  v.  Jackson,  627,  629,  630. 
Purefoy  v.  Purefoy,  484. 
Pushman  v.  Filliter,  167,  168,  169,  171. 
Pybus  V.  Smith,  123,  766. 
Pye,  exparte,  65,  82. 

V.  Gorge,  405,  406,  724. 

Pyncent  v.  Pyncent,  849. 
Pym  V.  Lockyer,  130. 

Quarrell  v.  Beckford,  559. 
The  Queen  v.  Abrahams,  19. 

V.  Harrogate  Commissioners,  272. 

T.  Norfolk  Commissioners  of  Se- 
wers, 516. 

V.  Pitt,  836. 

V.  Sterry,  271. 

V.  Trustees  of  Orton  Vicarage,  19. 

Queen's  College,  Cambridge,  m  re,  495. 
Quick  V.  Staines,  278. 

Raby  v.  Ridehalgh,  340,  344,  771. 
Rachfield  v.  Careless,  59,  69,  182,  262. 
Rackham  v.  Siddall,  245,  247,  258,  263, 

765. 
Radclifife  v.  Eccles,  835. 
Radnor  (Lady)  v.  Rotherham,  621. 
Raffety  v.  King,  733. 
Ramsden  v.  Langley,  558. 
Randal  v.  Hearle,  168. 

V.  Randal,  94. 

Randall's  Will,  in  re,  890. 

V.  Bookey,  181,  183. 

V.  Erring'ton,  460,  461,  463,  469, 

470,  471   737,  778. 

V.  Russell,  225. 

Raphael  v.  Bank  of  England,  758. 

V.  Boehm,  356,  359,  364,  766,  877. 

Rashley  v.  Masters,  796,  872,  873. 

Rastel  V.  Hutchinson,  205. 

Ratcliff  V.  Graves,  360. 

RatclifiFe  v.  Winch,  521. 

Ravenscroft  v.  Frisby,  745. 

Ravenshaw  v.  Hollier,  174. 

Rawe  V.  Chichester,  218,  219,  220,  222, 

224. 
Rawleigh's  case,  214. 
Raworth  v.  Parker,  486,  487. 
Ray,  exparte,  121,  122. 

V.  Adams,  168,  696. 

Raymond  v.  Webb,  414. 
Rayner  v.  Mowbray,  701,  707. 
Rea  V.  Williams,  201. 
Reach  v.  Kennegall,  71,  877. 
Read  v.  Prest,  856. 

V.  Snell,  144,  149,  155. 

V.  Truelove,  290. 

Reade  v.  Reade,  751,  755,  756. 

v.  Sparkes,  591,  857,  858. 

Reading  Dispensary,  in  re,  782. 
Redington  v.  Redington,  200,  203,  207, 

211,  212,  214,  215,  216. 
Reece  v.  Trve,  325.  721. 


Izz 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


Reech  v.  Kennegal,  71,  8 77. 
Reed  v.  O'Brien,  89,  848. 
Rees,  ex  parte,  781. 

V.  Keith,  631. 

V.  Williams,  341,  356. 

Reeve  v.  Attorney-General,  30,  31,  C77. 

V.  Parkins,  723. 

Reeves  v.  Creswick,  387,  393,  400. 

Regina  v.  Shee,  272. 

Reid  V.  Thompson,  596. 

Remington,  in  re,  715. 

Rendlesham  v.  Meux,  417. 

Renvoize  v.  Cooper,  265. 

Retford,  West  (Church  lauds)  in  re,  781. 

Revell  V.  Hussey,  175. 

Rex  V.  Blunt,  673. 

V.  Bulkeley,  673. 

V.  Flockwood,  301. 

V.  Lexdale,  575. 

V.  Tippin,  287. 

Reynolds,  ex  parte,  465,  468,  469,  711. 

V.  Jones,  288,  756. 

V.  Messing,  621. 

Rice  V.  Rice,  606,  729. 
Rich  V.  Cockell,  694. 
Richard's  Trust,  897. 
V.  Perkins,  870. 

Richardson,  ex  parte,  278. 

V.  Bank  of  England,  865,  866,  867, 

868. 

V.  Chapman,  168,  543,  708. 

V.  Hoiton,  285. 

V.  Hulbert,  234,  847. 

V.  Jenkins,  239,  692,  767. 

V.  Larpent,  852. 

V.  Moore,  392. 

Riddle  v.  Emerson,  61. 

Rider  v.  Kidder,  33,  199,  200,  205,  207. 
216. 

v.  Rider,  207,  649. 

Ridgeway,  ex  parte,  343. 

Ridgway  v.  Woodhouse,  193. 

Ridout  V.  Lewis,  643. 

Rigby,  ex  parte,  297. 

Rigden  v.  Vallier,  152,  201,  202. 

Eiggs  V.  Sikes,  202,  833. 

Right  V.  Smith,  248. 

Ripley  v.  Waterworth,  33,  189. 

Rippon  V.  Norton,  134. 

Rivet's  case,  272. 

Robarts  ( v.)  544,  583. 

Roberdeau  v.  Rous,  47,  48,  753. 

Roberts  v.  Dixwell,  142,  144,  155,  157, 
251,  623,  681. 

V.  Kingsley,  148. 

V.  Lloyd,  87,  605. 

V.  Spicer,  122,  694. 

V.  Tunstall,  470,   471,   473, 

742. 

Robertson  v.  Skelton,  174. 

Robinson  v.  Comyns  or   Cumin"-. 
247,  604. 

V.  Grey,  246,  247,  254. 

V.  Hedger,  657. 


r37, 


16, 


Robinson  v.  Knight,  187,  805. 

V.  Lowater,  435, 441,  445, 446, 447. 

V.  Pett,  232,  318,  319,  545,  551, 

553. 

V.  Ridley,  466,  468. 

V.  Robinson,    341,  346,   350,  355, 

356,  361,  363. 

V.  Smith,  168. 

V.  Taylor,  179,  180,  183. 

V.  Wheelwright,  121. 

V.  Wood,  837. 

Rochard  v.  Fulton,  608. 
Rochdale  Canal  Co.  v.  King,  743. 
Roche,  in  re,  572,  573,  574,  711,  713. 

V.  O'Brien,  471, 472,  473,  734,  737, 

738,  778. 

V.  Hart,  873. 

Rochford  v.  Fitzmaurice,  147, 148,  149,  . 
154,  156,  157,  164,  253. 

V.  Hackman,  135,  873. 

Rocke  V.  Hart,  359,  361,  363. 

V.  Rocke,  597. 

Rodgers  v.  Marshall,  97,  99. 
Roe  V.  Fludd,  195. 

V.  Reade,  263,  591. 

Rogers  v.  Linton,  849. 

V.  Rogers,  180,  181,  183,  184,  865. 

V.  Skillicorne,  434,  435,  436. 

Rolle's  Charity,  in  re,  718. 
Rolleston  v.  Morton,  662. 
Rollfe  V.  Budder,  121,  694. 
Rome  V.  Young,  485. 
Rook  V.  Worth,  823,  829,  830,  838. 
Roper  V.  Holland,  19. 

V.  Radcliffe,  179. 

Rose,  exparte,  613. 

V.  Cunningham,  69. 

V.  Haycock,  478. 

Ross's  Trust,  in  re,  123,  124,  632. 

,  in  re,  381. 

V.  Ross,  865. 

Rothwell  V.  Rothwell,  867. 
Round  V.  Byde,  480. 
Roupe  V.  Atkinson,  629. 
Routh  V.  Howell,  295. 

V.  Kinder,  847. 

Rowe  V.  Almsmen  of  Tavistock,  506, 
507,  508. 

v.  Bant,  659. 

Rowel  V.  Walley,  395. 
Rowland  v.  Morgan,  163,  368. 

V.  W'itherden,  306,  351,  357. 

Rowley  v.  Adams,  882,  888,  896,   903, 
904. 

V.  Unwin,  642,  778. 

Rowth  V.  Howell,  332. 

Roy  V.  Gibbon,  867,  869, 

Royds  V.  Royds,  876. 

Royston  Free  Grammar  School,  in  re, 

782,  783. 
Rumball  v.  Munt,  107. 
RumboU  V.  Rumboll,  303,  209,  210. 
Rumford  Market  case,  217. 
Rundle  v.  Rundle,  202,  207. 


TABLE    OF    CASES. 


Ixxi 


Rushworth's  case,  218. 
Russell's  case,  36,  39. 

,  ex  parte,  891, 

T.  Clowes,  325. 

V.  Dickson,  125. 

V.  Jackson,  Vl,  74,  169. 

V.  M'Culloch,  657. 

• V.  Plaice,  454. 

Rust  V.  Cooper,  47,  480. 
Rutherford  v.  Maule,  324. 
Ryall  V.  Rolle,  274,  275,  276,  650,  754, 
758. 

V.  Ryall,  63,  204,  206,  756,  762. 

Rycroft  v.  Christy,  91,  92,  122. 
Ryder  v.  Bickerton,  337,  338,  774. 
Ryland  v.  Smith,  369. 

Sadler  v.  Hobbs,  304,   305,  311,  312, 

313,  314,318. 

V.  Lee,  594. 

Saint  John's  Col.,'Cambridge,  v.  Tod- 

ington,  492. 
Saint  John  (Lord)  v.  Boughton,  485, 

745. 

V.  Turner,  739. 

Saint  Wenn's  Charity,  in  re,  781. 
Sale  V.  Kitson,  855. 

V.  Moore,  168,  169,  170,  173. 

Saloway  v.  Strawbridge,  420,  530. 
Salsbury  v.  Baggott,  721,  726. 
Salt  V.  Chattaway,  183,  197. 
Salter  v.  Cavanagh,  181,  731,  745. 
iSaltoun  V.  Houston,  239. 
Salvin  v.  Thornton,  604. 
Salway  v.  Salway,  334,  357. 
Sammes  v.  Rickman,  873. 
Sampayo  v.  Gould,  164,  352. 
Sanders  v.  Page,  629,  631. 

V.  Richards,  454. 

Sanderson  v.  Walker,  463,  470,  876. 
Sandford,  in  re,  835. 

V.  Keech,  217. 

Sandon  v.  Hooper,  559. 
Sands  v.  Nugee,  533. 
Sandys  v.  Watson,  873,  878. 
Sanford  v.  Irby,  256. 
Saunders,  ex  parte,  715,  716. 

V.  Dehew,  93,  724,  726. 

V.  Neville,  595. 

T.  Vautier,  597. 

Savage  v.  Carroll,  763. 

V.  Foster,  39,  774. 

V.  Taylor,  511. 

Saville  v.  Tancred,  226,  459. 

Savory  v.  Barber,  852. 

Snwley  v.  Gower,  684. 

Sawyer  v.  Birchmore,  375. 

Say  v.  Creed,  368. 

Sayers,  ex  parte,  276,  754,  758,  759. 

Scales  v.  Maude,  81,  88. 

Scammell  v.  Wilkinson,  261. 

Scarborough  v.  Borman,  125. 

(Eari  of)  V.  Parker,  875. 

Scarisbrick  v.  Skelmersdale,  111. 


Scattergood  v.  Harrison,  319,  546. 
Scawen  v.  Scawen,  214,  215. 
Schroder  v.  Schroder,  752. 
Score  V.  Ford,  865,  869. 
Scott  V.  Becher,  867,  870. 

V.  Davis,  124,  472,  473,  632. 

V.  Nesbitt,  47,  471. 

V.  Nicoll,  842. 

V.  Scholey,  648,  665. 

V.  Spashett,  370. 

V.  Surman,  274,  276. 

V.  Tyler,  453,  454,  455,   456,  458, 

459. 
Scounden  v.  Ilawley,  31,  260. 
Scroope  v.  Scroope,  210. 
Scudamore,  ex  parte,  480. 

•  V.  Scudamore,  793,  797,  805. 

Scully  V.  Dc4aney,  239,  316. 

V.  Scully,  848. 

Sculthorp  V.  Burgess,  177. 

Scurfield  v.  Howes,  305,  311,  312,  315, 

316,  766. 
Scale  V.  Scale,  153. 
Sear  v.  Ashwell,  97. 
Searle  v.  Law,  82,  84. 
Seddon  v.  Connell,  846,  848. 
Seeley  V.  Jago,  98,  816,  819. 
Seers  v.  Hind,  359,  875,  878. 
Segrave  v.  Kirwan,  226. 
Selby  V.  Alston,  16,  792. 
ScUack  V.  Harris,  70. 
Selyard  v.  Harris,  847. 
Senhouse  v.  Earle,  727. 
Sergeson  v.  Sealey,  827,  828,  829. 
Sergison,  ex  parte,  263,  833. 
Sewell  V.  Denny,  118,  177. 

V.  Musson,  476. 

Seys  V.  Price,  830. 
Shadbolt  v.  Thornton,  808. 

V.  Woodfali,  426. 

Shaftesbury  v.  Duke  of  Marlborough, 

387,  389,  391,  393,  395,  397,  398. 
Shakeshaft,  ex  parte,  356,  357,767,  768, 

771,  772,  773. 
Shales  v.  Shales,  214. 
Shallcross  v.  Wright,  184. 
Shanley  v.  Baker,  197. 
Shannon  v.  Bradstrcet,  591. 
Shapland  v.  Smith,  247. 
Sharp  v.  Cossent,  135. 

V.  Sharp,  233,  264,  570. 

Sharpe   v.  Earl  of  Scarborough,   650, 

661,  688,  691. 
Sharpe's  Trust,  in  re,  377,  380. 
Shaw,  ex  parte,  264,  479. 

V.  Borrer,  414,  428,  429,  440,  441, 

513. 

V.  Bran,  29. 

V.  Lawless,  102,  167. 

V.  Rhodes,  114,  117,  119. 

V.  Weigh,  250. 

Shee  V.  Hale,  135,  136. 
Sheldon  v.  Weldman,  729. 
Shelly's  case,  827. 


Ixxii 


LEWIN    ON    THE    LAW    OF    TKUSTS,    ETC. 


Shepherd  v.  Mouls,  341,  355,  356. 

V.  Shepherd,  621. 

Sheppard  v.  Smith,  875,  877. 

V.  Woodford,  272. 

Sheridan  v.  Joyce,  366,  756. 

Sheriffv.  Axe,  320,  546. 

Sherrard  v.  Lord  Harboroiigh,  179,  318. 

Sherratt  v.  Bentley,  234,  874. 

Sherwood,  in  re,  320,  549. 

Shewell  v.  Shewell,  368. 

Shewen  v.  Vanderhorst,  524. 

Shields  v.  Atkins,  325. 

Shine  V.  Gough,  511,  591. 

Shipbroolc  (Ld.)  v.  Lord  Hinchinbrook, 

305,  311,  312,  315,  316. 
Shiphard  v.  Lutwidge,  488. 
Shippardson  v.  Tower,  808. 
Shipton  T.  Rawlins,  845,  854. 
Shirley  v.  Ferrers,  489. 

V.  Watts,  648,  649. 

Shore  v.  Collett,  227. 

Shorrocks,  in  re,  835. 

Short  V.  Wood.  820. 

Shrewsbury  School,  in  re,  269,  318,  782. 

Sidebotham  v.  Barrington,  422. 

Sidmouth  v.  Sidmouth,  200,  207,  211, 

214,  215,  216. 
Sidney  v.  Shelley,  182,  191, 
Siebert  v.  Spooner,  477. 
Sikes  V.  Lister,  832. 
Silk  T.  Prime,  489. 
Sillibourne  v.  Newport,  538. 
Simmonds  v.  Falles,  482,  483. 
Simes  v.  Eyre,  849. 

V.  Naylor,  834. 

Simpson  v.  Morley,  668. 

V.  Sikes,  477,  478,  479. 

T.  Taylor,  648. 

Sims  V.  Marryatt,  249. 

Sish  V.  Hopkins,  660. 

Sisson  V.  Shaw,  517. 

Sitwell  V.  Bernard,  813. 

Skarflfv.  Soulby,  93. 

Skeats  v.  Skeats,  209,  211,  215. 

Skeetes,  in  re,  785. 

Skett  r.  Whitmore,  61,  204. 

Skinner,  ex  parte,  505,  507,  781,   782 

783. 
Slade  V.  Rigg,  848. 
Slater  v.  Wheeler,  300,  847. 
Slewringe's  Charity,  in  re,  781,  783. 
Sloane  v.  Cadogan,  81,  89,  93. 
Sloman  v.  Bank  of  England,  372. 
Sloper,  in  re,  897. 
Small  V.  Attwood,  774,  777,  844.    ' 

V.  Marwood,  237. 

V.  Dudley,  480. 

Smart  v.  Bradstock,  852. 

Smee  v.  Martin,  518. 

Smith,  exparte,  298,  471,  771,  835. 

V.  Adams,  621. 

V.  Adkins,  106. 

V.  Attersoll,  77. 

V.  Baker,  199. 


Smith  V.  Boucher,  894. 

V.  Camelford,  200,  643. 

V.  Clay,  732. 

V.  Claxton,  184,  185,  818. 

V.  French,  774,  777. 

V.  Garland,  93. 

V.  Guyon,  435. 

V.  Hibbard,  832. 

V.  Hurst,  662,  663,  666. 

V.  Jameson,  20. 

V.  Keating,  481. 

V.  King,  39,  180. 

V.  Lyne,  99. 

V.  Smith,  34,  605,  609,  612,  771, 

870,  885,  896. 

V.  Snow,  595,  850. 

V.  Spencer,  626. 

V.  Warde,  101. 

V.  Wheeler,  236,  449,  585. 

V.  Wilkinson,  63. 

Smyth's  Settlement,  896,  897,  905. 
Snow  V.  Booth,  749. 

v.  Hole,  875. 

Snowdon  v.  Dales,  132,  133. 
Sockett  V.  Wray,  35. 
Sombre  Dyce,  in  re,  835. 
Somerset's  case  (Earl  of),  676. 
Sonley  v.  Clockmakers'  Company,  693. 
Southampton  (Lord)  v.  Marquis  of  Hert- 
ford, 111, 161, 191. 

Southcomb  v.  Bishop  of  Exeter,  742. 

South   Eastern   Railway   Company,   ex 
parte,  342. 

Southouse  V.  Bate,  181. 

South   Sea   Company  v.  Wymondsell, 
734,  735. 

Southwell  V.  Ward,  713. 

Sowarsby  v.  Lacy,  432. 

Sowerby's  Charity,  in  re,  782. 

Spackman  Y.  Timbrell,  285. 

Spalding  v.  Shalmer,  304,  429,  435. 

Sparling  v.  Parker,  815. 

Spink  V.  Lewis,  182,  183. 

Spottiswoode  v.  Stockdale,  486. 

Sprange  v.  Barnard,  169,  171. 

Sprigg  V.  Sprigg,  190,  195. 

Spring  V.  Biles,  706. 

Spurgeon  v.  Collier,  284,  724. 

Spunner  v.  Walsh,  836. 

Spurrier  v.  Hancock,  175. 

Squire  v.  Dean,  643. 

V.  Ford,  486. 

Stacey  v.  Elph,  233,  235,  242,  462. 

Stackhouse  v.  Barnston,  737,  751,  756. 

Stackpole  v.  Davoren,  751,  752. 

Stacpoole  v.  Stacpoole,  359,  875. 

Stahlsclimidt  v.  Lett,  520. 

Staines  v.  Morris,  425. 

Stair  V.  Macgill,  813. 

Stamford  (Earl  of)  v.  Sir  John  Hobart, 

144,  156. 
Stamp  V.  Cooke,  707. 
Stamper  v.  Millar,  301. 
Standford  v.  Marshall,  634,  641. 


TABLE    OF    CASES. 


Isxiii 


Stanes  v.  Parker,  549,  550. 
Stanley,  in  re,  836. 

V.  Bond,  670. 

V.  Darington,  291. 

V.  Leigh,  150. 

Stanley  v.  Lennard,  145,  247. 
Stansfield  v.  Hobson,  855. 
Stanton  v.  Hall,  121,  122,  135. 
Staple's  Trust,  in  re,  381. 
Stapleton  v.  Stapleton,  82. 
Starkey  v.  Brooks,  180,  181,  183. 
Stead  V.  Nelson,  633,  635,  645. 

V.  Newdigate,  792,  807,  818. 

Steele  v.  Philips,  650. 
Stent  V.  Bailis,  174. 
Stephens  v.  James,  135. 

V.  Trueman,  94. 

Stevens  v.  Hotham,  425. 
V.  South   Devon   Railway   Com- 
pany, 516. 
Stermett  v.  Bainbridge,  468. 
Stewart  v.  Hoare,  556. 

v.  Noble,  489. 

Stickland  v.  Aldridge,  67,  68,  70,  71. 

Stickney  v.  Sewell,  338,  345. 

Stiffe  V.  Everitt,  627. 

Stikeman  v.  Dawson,  39, 

Stile  V.  Tomson,  530. 

Stiles  V.  Guy,  239,  316,  329,  338,  661, 

737. 
Stileman  v.  Ashdown,   210,   212,  650, 

658,  659,  660. 
Stocken  v.  Dawson,  549. 
Stone  V.  Godfrey,  325,  737,  775,  778. 

V.  Gratham,  476. 

V.  Theed,  383,  384,  386,  388,  389, 

395. 

V.  Van  Heythusen,  482,  490. 

V.  Wythipole,  37. 

Stones  V.  Rowton,  578. 
Stonehewer  v.  Thompson,  660. 
Stonehouse  v.  Evelyn,  183. 
Stonor  v.  Curwen,  147,  155,  156. 
Storry  v.  Walsh,  441,  445,  446,  448. 
Story  v.  Tonge,  372. 
Stott  v.  Hollingworth,  813. 
Stow  V.  Drinkwater,  262. 
Stafford  v.  Powel,  146,  163. 

V.  Twynam,  465. 

Streatfield  v.  Streatfield,  148. 
Stretton  v.  Ashmall,  345. 
Stright,  ez parte,  612. 
Strode  v.  Russel,  262. 

V.  Winchester,  71. 

Strong  V.  Strong,  853. 

Stroughill  V.  Anstey,  416,  417,  434,  436, 

437,  439,  458. 
Stuart,  ex  parte,  425. 

V.  Bruere,  813. 

V.  Kirkwall,  634,  635,  639,  641. 

V.  Stuart,  340,  348. 

Stuckey  v.  Drewe,  475. 
Stnltz's  Trust,  in  re,  136. 
Stubbs,  ex  parte,  715. 


Stubbs  V.  Roth,  218,  223. 

V.  Sargon,  181. 

Sturgis  V.  Champueys,  629,  630. 

V.  Corp,  124. 

Sturt  V.  Mellish,  19,  20. 

Stutely,  ex  parte,  379,  772. 

Sty  an,  in  re,  613. 

Suir  Island  Female  Charity  School,  in 

re,  503,  782. 
Supple  V.  Lowson,  542,  705,  706,  782. 
Sutcliffe  V.  Cole,  190. 
Sutherland  v.  Cooke,  808,  810,  815. 
Sutton  V.  Jones,  319,  460. 

V.  Sharp,  359,  361. 

Sutton  Colefield  case,  198,  726. 

Swan  V.  Swan,  511. 

Swayne  v.  Swayne,  613. 

Sweet  V.  Southcote,  726. 

Sweetapple  v.  Bindon,  153,  621,  622, 

793. 
Swift,  ex  parte,  517. 

v.  Davis,  211,  214. 

V.  Gregson,  701,  706. 

V.  Nash,  69. 

Swinnock  v.  Crisp,  518. 
Sykes  v.  Hastings,  319. 
Sylva  V.  Da  Costa,  834. 
Sylvester  v.  Jarman,  263. 

v.  Wilson,  247. 

Symance  v.  Tattam,  409. 
Symons  v.  Rutter,  807. 
Symson  v.  Turner,  247. 
Synge  v.  Hales,  141,  146,  164. 

Tabor  v.  Grover,  18. 
Taggart  v.  Taggart,  152,  153. 
Tait  V.  Jenkins,  871. 

V.  Northwick,  482,  491. 

Talbot  V.  Earl  of  Radnor,  234,  367. 

V.  Whitfield,  820. 

Taner  v.  Ivie,  455. 
Tanner  v.  Dancey,  873. 

V.  El  worthy,  218. 

Tappenden  v.  Burgess,  477,  478,  479. 

V.  Walsh,  694. 

Tarback  v.  Marbury,  476. 
Tardiffv.  Robinson,  392. 
Targus  v.  Puget,  153. 
Tarleton  v.  Hornby,  768,  845. 
Tasker  v.  Small,  175,  844. 
Taster  V.  Marriott,  218. 
Tatam  v.  Williams,  742. 
Taylor,  ex  parte,  477,  478. 
Taylor's  Trust,  in  re,  807. 

v.  Allen,  870. 

V.  Alston,  214,  215. 

V.  Clark,  815. 

V.  Crompton,  753. 

V.  George,  167,  168. 

V.  Glanville,  367,  873,  875. 

V.  Hawkins,  456. 

V.  Haygarth,  198,  321,  324,  679. 

V.  Hibbert,  813. 

V.  Jones,  9^,  648. 


Ixxiv 


LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 


Taylor  v.  Plumer,  274,  275,  754,   757, 
758, 763. 

V.  Salmon,  851. 

V.  Stibbert,  725. 

V.  Tabrum,  424,  767,  876. 

V.  Taylor,  39,  184,  207,  212,  215, 

633. 

V.  Wheeler,  276. 

Tee  V.  Ferris,  71,  73. 

Tebbs  V.  Carpenter,  328,  358,  359,  361, 

362,  364,365,  876,  879. 
Tenant  v.  Brown,  173. 
Tench  v.  Cheese,  116. 
Terry  V.  Terry,  337,  513. 
Theebridge  v.  Kilburne,  149. 
Thetford  School  case,  198,  199. 
Thicknesse  v.  Vernon,  201. 
Thomas,  ex  parte,  277.  278. 

V.  Bennett,  643. 

V.  Burne,  223. 

V.  Bering,  538,  540,  541. 

V.  Dunning,  842,  843. 

V.  Gwynne,  834. 

T.  Hole,  707. 

V.  Thomas,  751,  756. 

Thomason  v.  Mackworth,  251. 
Thompson,  in  re,  836. 

V.  Blackstone,  415. 

V.  Grant,  264. 

v.  Harrison,  777. 

V.  Jackson,  476. 

V.  Leach,  36. 

T.  Simpson,  722,  728,  745,  775. 

Thompson  v.  Speirs,  613. 
Thorby  v.  Yeats,  595,  858,  875. 

Thornley  v.  Aspland,  137. 

Thornton  v.  Ellis,  813. 

V.  Hawley,  800,  806,  807,  816. 

Thorp  V.  Thorp,  376,  377. 

Thorpe  v.  Jackson,  848. 

V.  Owen,  61,  82,  172,  681. 

Thrupp  V.  Harman,  643,  644,  681. 

Thrustout  V.  Coppin,  262. 

Thruxton  v.  Attorney-General,  56. 

Thynn  v.  Thvnn,  71. 

Tibbits  V.  Tibbits,  168,  169,  171. 

Tickner  v.  Smith,  358. 

Tidd  v.  Lister,  370,  587,  870. 

Tierney  v.  Wood,  65. 

Tiffin  V.  Longman,  705. 

Tinstone's  Trust,  in  re,  377. 

Tilly  V.  Bridges,  755. 

Timson  v.  Ramsbottom,  608,  610,  014. 

Tipping  V.  Piggott,  405,  406. 

V.  Power,  873. 

Titley  v.  Wolstenholme,  265,  266. 

Todd  T.Wilson,  549,  550. 

Toft  V.  Stephenson,  746. 

Toller  V.  Attwood,  256. 

V.  Carteret,  48. 

Tooke  V.  HoUingsworth,  274. 

Tournay,  in  re,  37G. 

Townley  V.  Bedwell,  392,  808. 

V.Bond,  244,  390,  392. 


Townley  v.  Sherborne,  299,  302,  304. 
Townsend,  ex  parte,  29,  295. 

,  in  re,  883. 

V.  Ash,  756. 

V.  Barber,  314. 

V.  Lawton,  409. 

V.  Westacott,  93. 

V.Wilson,  301,  528. 

Townshend  (Marquis  of)  v.  Bishop  of 
Norwich,  179. 

V.  Townshend,  729,  730,  731. 

V.  Windham,  643. 

Townson  v.  Tickell,  236,  237. 
Trafford  v.  Boehm,  341,  351,  768,  792, 
820,  821,  823. 

V.  Trafford,  160. 

Trash  v.  Wood,  45,  680. 
Travell  v.  Danvers,  710. 
Travers  v.  Townsend,  876. 
Tregonwell  v.  Sydenham,  181, 182,  189, 

190,  191. 
Trench  v.  St.  George,  384,  385. 

V.  Harrison,   200,   206,   350,  756, 

763. 

Trent  v.  Banning,  250. 

Treves  v.  Townsend,  359,  361,  362. 

Trevor  v.  Peryor,  682. 

V.  Trevor,  147,  155,  156,  725, 

Trickey  v.  Trickey,  117. 

Trinity  College  v.  Brown,  272. 

Triquet  v.  Thornton,  806. 

Trot  V.  Vernon,  167. 

Trott  V.  Dawson,  560. 

Trower  v.  Knightley,  531,  819. 

Trutch  V.  Lamprell,  291. 

Tryon,  in  re,  234. 

Tucker  v.  Boswell,  813. 

V.  Thurstan,  284. 

Tudor  V.  Samyne,  631. 

Tuer  V.  Turner,  818. 

Tuffnell  V.  Page,  45,  616. 

Tullet  V.  Tullet,  830. 

Tullett  V.  Armstrong,    122,    128,   633, 
634,  635. 

Tulloch  V.  Hartley,  50. 

Tunstall  v.  Trappes,  651,  661,  662,  672, 
772. 

Tunstall's  Will,  895. 

Turquand  v.  Knight,  875. 

Turner,  ex  parte,  435,  441,  442,  772. 

(Sir  Edward's)  case,  631. 

V.  Buck,  288,  719,  751. 

V.  Corney,  290,  599. 

V.  Frampton,  368. 

V.  Gwinn,  603. 

V.  Harvey,  415. 

V.  Hill,  217. 

V.  Hind,  853. 

V.  Mauley,  356,  366,  574. 

V.  Sargent,  146,  164. 

v.  Turner,  358. 

V.  Wardle,  238. 

Turnley  v.  Kelly,  121. 
Turpin.  ex  parte,  771. 


TABLE    OF    CASES. 


Isxv 


Tutin,  ex  parte,  833. 
Twistleton  v.  Thelwel,  873. 
Twopeny  v.  Peyton,  133. 
Twyne's  case,  416. 
Tylden  v.  Hyde,  445. 
Tylee  y.  Tylee,  869. 
Tyler  V.  Lake,  122. 
Tyler's  Trust,  in  re,  895. 
Tyrrell  v.  Hope,  122,  217. 
Tyrrell's  case  (Lady,)  177. 

Underwood  v.  Hatton,  375,  487,   522, 
765. 

T.  Stevens,  315,  316,  774. 

Uaiacke,  in  re,  233,  237. 

University  College,  Oxford,  in  re,  495. 

of  Oxford  V.  Richardson,  753. 

Upton  Warren,  in  re,  781. 

UpfuU's  Trust,  in  re,  376. 

Urch  V.  Walker,  233,  234,  240,  241,  366. 

Uvedale  v.  Ettrick,  712. 

V.  Uvedale,  873. 

Van  V.  Barnett,  723,  806,  816,  823. 
Van  Sandau  v.  Moore,  857. 
Vandebende  v.  Levingston,  752. 
Vanderstegen  v.  Witham,  19. 
Vaughan  v.  Buck,  369,  370,  810,  812. 

V.  Burslem,  151,  162,  163. 

V.  Farrer,  504. 

V.  Vanderstegen,  639,  768. 

Venables  v.  Morris,  253. 
Verner,  ex  parte,  136. 
Verney  v.  Carding,  725,  758. 

v.  Verney,  384,  386,  395. 

Vernon's  case,  58. 
Vernon,  ex  parte,  200,  832. 

V.  Blackerley,  844. 

V.  Vawdry,  238,  764. 

V.  Vernon,  94,  167,  830. 

Verulam  (Earl  of)  v.  Bathurst,  155. 
Vez  V.  Emery,  367. 
Vezey  v.  Jamson,  182. 
Vick  V.  Edwards,  252. 
Vickers  v.  Cowell,  201. 

V.  Scott,  415,  813. 

Vigor  V.  Harwood,  813. 
Vigrass  v.  Binfield,  337,  867,  869. 
Villers  v.  Beaumont,  97. 
Villiers  v.  Villiers,  250. 
Vincent  v.  Godson,  239. 

V.  Newcombe,  345,  810. 

Viner  v.  Cadell,  274,  278. 
Voyle  V.  Hughes,  91. 

Wackerbath,  ex  parte,  305. 

V.  Powell,  294. 

Wade  V.  Paget,  16. 
Wadley  v.  Wadley,  392. 
Wagstaff  V.  Smith,  122,  124,  248. 

V.  Wagstaff,  45,  615,  616. 

Wain  V.  Earl  of  Egmont,  487,  538,  541. 
Wainwright  v.  Bagshaw,  107. 
V.  Elwell,  15. 


Wainwright  V.  Hardisty,  635,  645. 

V.  Waterman,  696. 

Waite  V.  Whorwood,  754,  757. 

Waithman,  ex  parte,  612. 

Wake  V.  Wake,  893,  903. 

Wakeford,  in  re,  834,  883. 

Wakeman  v.  Duchess  of  Rutland,  427, 
844. 

Walburn  v.  Ingilby,  846. 

Walford  ( v.)  596. 

Waldo  V.  Caley,  542. 

V.  Waldo,  515. 

Walker  ( v.)  345. 

Walker,  in  re,  546,  818,  834,  883. 

V.  Denne,  791,  795,  798,  805,  806, 

819. 

V.  Meager,  487,  643. 

V.  Preswick,  725,  845. 

V.  Shore,  415,  775,  816. 

. V.  Smalwood,  429,  434,  524. 

V.  Symonds,  290,  304,  307,  311, 

312,  317,  337,  338,  357,  599,726, 
767.  774,  775,  777,  778,  845. 

V.  Walker,  538,  540. 

v.Wetherell,  518. 

V.  Woodward,  363. 

Wall  V.  Bright,  175,  263,  268. 

Wallburn  v.  Ingilby,  846. 

Walley  V.  Whalley,  217,  222,  224,  725. 
847. 

Wallgrave  v.  Tebbs,  73,  79. 

Wallwyn  v.  Coutts,  101,  476,  481. 

WalshV.  Dillon,  858. 

V.  Gladstone,  572. 

V.  Wallinger,  701,  703,  704. 

Walter  v.  Maunde,  599,  707,  808. 

V.  Saunders,  631. 

Walton,  ex  parte,  715. 

V.  Merry,  839. 

V.  Walton,  59,  69,  180,  182. 

Walworth  v.  Holt,  851. 

Wankford  v.  Wankford,  234. 

Warburton  v.  Hill,  608,  613,  614,  615. 

V.  Sandys,  300,  301,  567,  581. 

V.  Vaughan,  837,  839. 

Ward  V.  Arch,  729,  747. 

V.  Audland,  88. 

V.  Bassett,  853. 

V.  Burbury,  253,  254. 

V.  Butler,  239,  240. 

V.  Lant,  177. 

Wardle  v.  Claxton,  122,  123. 

Ware  v.  Polhill,  829. 

Waring,  in  re,  376,  380. 

V.  Coventry,  277. 

V.  Waring,  326,  344,  345,  350,  358. 

Warman  v.  Seaman,  177. 

Warmstreyv.  Tanfield,  12,  600. 

Warrick  v.  Warrick,  148,  727. 

Warter  v.   Hutchinson,   248,   251.  254, 

257. 
Warwick  Charities,  in  re,  718. 

Countess  of,  v.  Edwards,  643. 

V.  Richardson,  37,  581. 


Ixxvi 


LEW IN    ON 


THE    LAW    OF    TRUSTS,    ETC. 


Washborn  v.  Downes,  602. 
Waterhouse  v.  Stanfield,  49. 
Waters  v.  Bailey,  218. 

V.Wood,  44. 

Watkins,  ex  parte,  612. 

V.  Cheek,  434,  435,  456,  458. 

Watson,  ex  parte,  361,  772. 

V.  Hayes,  183. 

y.  Hinsworth  Hospital,  507. 

V.  Earl  of  Lincoln,  195. 

V.  Marshall,  370. 

V.  Pearson,  258,  300. 

V.  Toone,  460,  465,  466,  471. 

Watts's  settlement,  in  re,  574,  885,  896. 

V.  Ball,  621,  625. 

V.  Bullas,  99. 

V.  Cresswell,  39. 

V.  Girdlestone,  338,  341,  356,  418. 

V.  Hyde,  472. 

V.  Jeffereyes,  671. 

V.  Kancie,  454,  455. 

V.  Porter,  280,  671. 

V.  Turner,  595. 

Waugh's  Trust,  in  re,  883,  906. 
Way  V.  East,  132. 

Weale  v.  Olive,  84. 

Weatherby  v.  St.  Giorgio,  430. 

Weaver  v.  Maule,  283,  284. 

Webb  V.  Ledsam,  305. 

V.  Lugar,  218. 

V.  Rorke,  470. 

V.  Earl  of  Shaftesbury,  142,  318, 

544,  559,  582,  723. 

V.  Webb,  118,  857. 

V.  Wools,  168,  171. 

Wedderburn  v.  Wedderburn,  319,  729, 
730,  777,  778. 

Wedgwood  v.  Adams,  424. 

Weiss  V.  Dill,  557. 

Weld  V.  Bonham,  851. 

V.  Tew,  827. 

Welford  v.  Liddle,  734. 

Wellesley  v.  Wellesley,  174. 

West  V.  Ayles,  834. 

V.  Errissey,  148,  149,  727. 

V.  Steward,  474. 

Westby  v.  Westby,  670. 

Westbrook,  in  re,  546,  556. 

V.  Blythe,  668,  672. 

Westcott  V.  CuUiford,  368. 

Western  v.  Cartwright,  734. 

Westley  v.  Clarke,  304,  305,  310,  317. 

Weston  V.  Filer,  893,  903. 

Westover  v.  Chapman,  338.  363. 

Wetherell  v.  Collins,  842. 

V.  Hall,  593. 

V.  Langston,  237. 

V.  Wilson,  596. 

West  Ham  Charities,  in  re,  782. 
Whale  V.  Booth,  278,  455,  456,  457. 
Whalley  v.  Whalley,  734, 
Whateley  v.  Kemp,  148. 
Whatton  v.  Toone,  4G0,  734. 
Wheate  v.  Hall,  164. 


Wheatley  v.  Purr,  81. 
Wheeler,  in  re,  883. 
Wheelwright  v.  Jackson,  480. 
Wheldale  v.  Partridge,  793,  799,  804, 

806,  824. 
Whelpdale  v.  Cookson,  461,  464,  466, 

473. 
Whetstone  (Lady)  v.  Bury,  678. 
Whitchcotev.  Lawrence,  461,  463,  469, 

470,471,738. 
Whinchcombe  v.  PuUeston,  136. 
Whish,  ex  parte,  715. 
Whistler  v.  Newman,  634,  640,  775,  875. 

V.  Webb,  842. 

Whiston  V.  Dean  and  Chapter  of  Ro- 
chester, 493. 
Whitacre,  ex  parte,  264. 
Whitaker  v.  Wisby,  28. 
Whitcomb  v.  Minchin,  462. 
White  v.  Barton,  241,  868. 

V.  Baj-lor,  283,  693. 

V.  Briggs,  168,  169,  170,  171. 

V.  Carter,  155. 

V.  Cuddon,  415. 

V.  Evans,  59,  69,  182. 

V.  Ewer,  731. 

V.  Foljambe,  421,  425. 

V.  Lincoln,  337,  599. 

V.  Nutts,  175. 

V.  Parker,  247,  248. 

V.  Tommy,  465. 

V.  White,  383,  384,  395,  396,  397, 

398,  399,  402,  706,  713,  774. 

V.  Williams,  59. 

Whitecomb  v.  Jacob,  756,  757. 

Whitfield  V.  Brand,  278. 

V.  Prickett,  135. 

Whitley,  ex  parte,  713,  715,  716. 

Whitmarsh  v.  Robertson,  865. 

Whitmore  v.  Weld,  39. 

AVhittingham's  case,  36,  37. 

Whittem  v.  Sawyer,  369. 

Whittle  V.  Halliday,  848. 

V.  Henning,  §72. 

Whitton,  ex  parte,  836. 

V.  Lloyd,  488. 

Whitwich  V.  Jermin,  796. 

Whitworth  v.  Gaugain,  280,  672. 

Wichfield  v.  Baker,  808. 

Widdowson  v.  Duck,  343,  524. 

Widmore  v.  Woodroffe,  699. 

Wigg  V.  Wigg,  173,  725. 

Wlghtman  v.  Townroe,  272. 

Wiglesworth  v.  Wiglesworth,  357,  867. 

Wike's  case,  30,  260,  280,  629,  677. 

Wileocks  v.  Hannygton,  83. 

Wild  V.  Wells,  755. 

Wildes  V.  Davies,  119. 

Wilding  V.  Bolder,  40,  579. 

V.  Richards,  481,  482,  483. 

Wiles  V.  Cooper,  858. 

V.  Gresham,  326,  340,  521,  756. 

Wilkes  V.  Steward,  337,  338. 

Wilkins  v.  Fry,  423,  426. 


TABLE    OF    CASES. 


Isxvii 


Wilkins  v.  Hunt,  873, 

V.  Stevens,  205. 

Wilkinson,  ex  parte,  243,  715. 

V.  Brayfield,  178. 

V.  Malin,  298,  299,  501. 

V.  Parry,  565,  577,  774,  777,  847. 

Wilks  V.  Groom,  885. 

V.  Wilkinson,  131,  135,  139,  556, 

559. 
Willan  V.  Lancaster,  617. 
Willand  v.  Fenn,  316. 
Willats  V.  Busby,  93,  849,  850. 
Willet  V.  Sandford,  8. 
Willett  V.  Blandford,  319. 
Williams'  estate,  in  re,  881. 

in  re,  836. 

V.  Bird,  715. 

V.  Carter,  167. 

V.  Coade,  182,  183. 

v.  Corbet,  101. 

V.  Kershaw,  182. 

V.  Lomas,  768. 

V.  Lord  Lonsdale,  324. 

V.  Nixon,  240,  299,  310,  315,  316, 

317,  318. 

V.  Powell,  363,  364. 

T.  Waters,  248. 

V.  Williams,  169,  173. 

Williamson  v.  Codrington,  93,  94. 

V.  Curtis,  435. 

V.  Park,  659. 

V.  Williamson,  93. 

Willis  v.  Childe,  543. 

T.  Hiscox,  595,  878. 

V.  Kibble,  551. 

V.  Willis,  200,  204,  205. 

Wilmot  V.  Pike,  608. 
Willmott  V.  Jenkins,  243. 
Willoughby  v.  Willoughby,  131,  725. 
Wills  V.  Savers,  121,  122. 
Wilson,  in  re,  836. 

V.  Beddard,  805. 

V.  Bennett,  265,  267,  533. 

V.  Bronghton.  845. 

V.  Clapbam,  174. 

V.  Day,  476,  477,  480. 

V.  Dennison,  297. 

V.  Dent,  45,  63,  616. 

V.  Fielding,  686. 

V.  Foreman,  756. 

V.  Goodman,  768. 

V.  Heaton,  564. 

V.  Hoare,  272. 

V.  Knubley,  239. 

V.  Major,  169,  171,  183,  187. 

V.  Moore,  729,  767. 

V.  Oldham,  371. 

V.  Wilson,  113,  875. 

Wilton  V.  Hill,  865. 

V.  Jones,  842,  853. 

Wiltshire  v.  Rabbits,  608. 
Winch  V.  Brutton,  171. 

V.  Keeley,  274,  275. 

Winchelsea  v'.  Norcliffe,  829,  830. 

January,  1857. — 6 


Winchester  (Bishop  of)  v.  Knight,  753. 

Winged  v.  Lefebury,  725. 

Winn  v.  Fenwick,  705. 

Winnall,  exparte,  291. 

Winnington  v.  Foley,  409. 

Winslow  V.  Tighe,  218,  223. 

Winter,  ex  parte,  838. 

V.  Rudge,  572. 

Wise,  in  re,  882. 

V.  Wise,  233,  609. 

Wiseman  v.  Roper,  94. 
Witham's  case,  5,  9. 
Withers  v.  Allgood,  142. 

T.  Withers,  60,  199,  202. 

Withington  v.  Withington,  574. 
Withey  v.  Mangles,  707. 
Witter  V.  Witter,  19,  829. 
Witts  V.  Bodington, 

V.  Dawkins,  123. 

AYivelescom  case,  495. 
Wolestoncroft  v.  Long,  487,  488. 
Wood  V.  Betlestone,  894,  898. 

V.  Cox,  168. 

V.  Dixie,  475. 

V.  Downes,  473,  867.  , 

V.  Hardisty,  238. 

V.  Harman,  434,  523. 

V.  Nosworthy,  18. 

V.  Richardson,  415. 

V.  Stane,  710. 

V.  White,  441,  532,  844. 

V.  Williams,  842. 

V.  Woods,  857. 

Wood's  Trust,  in  re,  377. 
Woodcock  V.  Renneck,  700,  704. 
Woodhead  v.  Marriott,  358,  879. 
Woodin,  ex  parte,  226,  562. 
Woodhouse  v.  Hoskins,  144,  404,  408, 

409,  410. 
Woodman  v.  Horslev,  122. 
V.  Morrel,  178."200,  207,  214,  215, 

216. 
Woodmeston  v.  Walker,  124. 
Woods  V.  Woods,  169,  596,  857. 
Woodyat  v.  Greslev,  771. 
Woollet  V.  Harris,  ^80,  181. 
Woolmore  v.  Burrows,    154,   156,  157, 

164,  404. 
Woolnough  V.  Woolnough,  603. 
Worley  v.  Frampton,  425. 
Worrall  v.  Harford,  101,  317,  557,  561. 
Worsley  V.  Deraattos,  476,  477,  478,  480. 
Wortham  v.  Pemberton,  629,  632. 
Worthington  v.  Evans,  533. 
Wrangham,  exparte,  495. 
Way  v.  Smith,  815. 
Wray  v.  Steele,  200,  201. 
Wren  v.  Kirton,  295,  296,  333. 
Wright  V.  Atkyns,  168,  169,  170,  173. 

V.  Hall,  195. 

Wright  V.  Maunder,  422. 

V.  Newport  Pond  School,  506,  508. 

V.  Pearson,  141, 142,  145,  247,  251, 

256. 


Ixxviii 


LEW  IX    OX    THE    LAW    OF    TRUSTS,    ETC. 


Wright  V.  Rose,  808. 

V.  Row,  193,  194. 

V.  Snowe,  39. 

V.  Wright,  183,  184. 

Wright's  settlement,  in  re,  376. 

will,  m  7-e,  377. 

Wrigley  v.  Sylies,  441,  445,  446,  447. 
Wyatt  V.  Sharratt,  349,  867,  869. 
Wynch  v.  East   India   Company,  721, 
734. 

V.  Packington,  177,  179,  180. 

Wyche,  m  re,  550. 
Wykham  v.  Wykhnm,  253,  604. 
Wynch  v.  Grant,  239. 
Wynne  v.  Hawkins,  169,  171. 

V.  Styan,  733. 

Wynter  v.  Bold,  420. 

Yallop,  ex  parte,  203. 

V.  Holworthy,  735. 

Yarnold  v.  Moorbouse,  135, 


Yates  V.  Hambly,  842. 

Yervel   (Poor   of)  v.  Sutton,  506,  507, 

508. 
York  V.  Brown,  320,  549,  874. 
York  Buildings  Company  v.  Mackenzie, 
466,  467,  471. 

V.  Eaton,  201,  202. 

Young  r.  Dennet,  488. 

V.  Grove,  182. 

—  V.  Martin,  172. 

V.  Peachy,  177,  178. 

V.  Scott,  857. 

V.  Waterpark,  729,  747.  748. 

Younge  v.  Combe,  359,  361. 
Younger  v.  Welham,  298. 
Younghusband  v.  Gisborne,   134,  598, 

656. 

Zinck  V.  Walker,  275. 
Zoach  V.  Lloyd,  830. 
Zouch  T.  Parsons,  36,  37,  38. 


TABLE  or  STATUTES  CITED. 


The  pages  referred  to  are  those  between  brackets  [ 


]• 


EDWARD  I. 

11,         (Statute  Merchant),  21S. 
13,  St.  1,  c.  1,  (De  Bonis),  601. 
St.  1,  c.  18,  (Elegit),  278. 
St.  1,  c.  39,  (Levari  Facias),  647. 
St.  3,  (Statute  Merchant),  278. 
EDWARD  II. 
9,  St.  2,  (Sheriffs),  269. 

EDWARD  III. 
27,  St.  2,  c.  9,  (Statute  Staple),  278. 

RICHARD  II. 
15,  c.  5,  (Mortmain),  43. 
HENRY  VI. 
8,  c.  7,  (Right  of  voting  for  Members 
of  Parliament),  270. 
RICHARD  III. 
1,  c.  1,  [Cestui  que  Use  empowered  to 
pass  Legal  Estate),  5,  601. 
HENRY  VII. 
4,  c.  24,  (Fines),  601. 
19,  c.  15,  (Execution  against  Uses),  10. 

HENRY  Vin. 
21,  c.  4,    (Sales  by  Executors),  532. 

26,  c.  13,  (Forfeiture),  9,  28,  674. 

27,  c.  10,  (Statute  of  Uses),  7,  10. 
33,  c.  20,  (Forfeiture),  674,  675,  676. 

ELIZABETH. 
13,  c.  4,  (Extents),  673. 

c.  5,  (Creditors),  93,  475,  476. 
27,  c.  4,  (Purchasers),  92,  93. 
43,  c.  4,  (Charitable  Uses),  779. 

CHARLES  II. 
22&23,  c.  25,  (Game  Act),  593. 
29,  c.  3,  s.  5,  (Devises  of  Land,)  65. 

s.  7,  (Creations    of     Trust    of 

Land),  60. 
s.  8,  (Exception      of     Implied 

Trusts),  204,  228,  762. 
s.  9,  (Assignments  of  Trusts), 

600. 
s.  10,  (Judgments  against  ces- 
tui que  trust),  664,  690. 
s.  12,  (Estates  pur   autre   vie), 
202. 


4, 

c. 

6, 

c. 

^, 

c. 

1, 

St 

4, 

c. 

8, 

c. 

9, 

c. 

L4, 

c. 

WILLIAM  AND  MARY. 

3,  c.  14,  (Action  against  Devisee),  239, 

689,  690. 

4,  c.  3,  s.  10,  (Bequests  of  Stock),  32. 

5,  c.  20,  s.  20,  (Bank  of  England),  32. 

WILLIAM  III. 
7  &  8,  c.  25,  s.  7,  (Right  of  voting  for 
Members    of    Parliament), 
270. 

ANNE. 
16,  s.  22,  (Subpoena),  859. 
35,  (Yorkshire  Registry),  596. 

19,  (Infant  Trustees),  38,  832. 
GEORGE  I. 

2,  c.  19,  (Bequests  of  Stock),  32. 

GEORGE  II. 
10,  (Lunatics,    &c.,   Trustees    of 

Lands),  833. 
6,  (Yorkshire  Registry),  596. 
6,  (Mortmain),  44,  79,  132. 

20,  s.  9,  (Estates  pur  autre  vie), 
202. 

18,  s.  1,  (Right  of  voting  for 
Members  of  Parliament), 
271. 

19,  s.  49,  (Bequests  of  stock),  32. 
GEORGE  III. 

35,  (Extents),  673. 

90,  (Lunatic,    &c.,    Trustees    of 

Stock,)  833. 
40,  c.  36,  (Bank  of  England),  33, 
859. 

c.  56,     (Disentailing    money- 
land),  820,  821. 
c.  88,  s.  10,   (Will  of  the  So- 
vereign), 25. 
c.  98,  (Thellusson  Act),  112. 
47,  c.  74,  (Traders' Lands,  Assets),  273. 
52,  c.  101,  (Romilly's  Act),  718,  779. 
54,  c.  145,  (Corrup'tiou  of  Blood),  28. 
56,  c.  91,    (Charity  Commissioners), 

783. 
58,  c.  95,  s.  2,  (Right  of  voting  for  Co- 
roners). 592. 


18,  c. 


30,  c. 

25,  c. 
36,  c. 

39  & 


Ixsx 


LEWIN    ON    THE    LAW    OF    T  K  U  S  T  S,    ETC. 


50,  c.  81,  (Charity  Commissioners),  V83. 
GEORGE  IV. 

I  &  2,  c.  19,  (Lunatic  Trustees),  834. 

6,  c.  74,  (Trustee  Act),  834. 

c.  16,  (Bankruptcy  Act),  479,  557. 

7,  c.  57,  (Sales  under  Insolvent  Debt- 

ors' Act),  422. 
WILLIAM  IV. 

II  G.  4,  &  1  W.  4,  c.  40,  (Executor  Trus- 

tee for  next  of  kin),  59,  325. 

c.  47,  (Action  against  Devisee,  As- 
sets), 239,  273,  474. 

c.  60,  (Lord  St.  Leonards'  Trustee 
Act),  713,  834,  835,  836, 
837,  838,  839. 

1,  c.  60,  s.  23,  (Charities),  716. 
1  &  2,  c.  32,  (Game  Act),  593. 

2,  c.  45,  s.  23,  (Reform  Act,  Right  of 

Voting),  271. 
c.  57,  (Charities),  716. 
3  &  4,  c.  27,   (Limitation  of  Actions 

and  Suits),  288,  484,   722, 

743,  744,  745,  786. 
c.  74,  (Fines  and  Recoveries), 

16,  148,  156,  157,  236,  237, 

411,  472,  604,  817,  822. 
c.  104,  (Assets),  273,  285,  435, 

474,688,  691,  692,  796. 
c.  105,  (Dower),  621,  626,  794. 
c.  106,  (Inheritance),  187,  618, 

680. 

4  &  5,  c.  23  (Escheat),  836. 

c.  29  (Lynch's  Act),  347,  348. 
c.  92,   (Fines  and  Recoveries, 
Irish),  236. 

5  &  6,  c.  76,  (Municipal  Corporation 

Act),  25,  31,  716,  717. 
VICTORIA. 
1,  c.  2G,  (Wills),  33,  45,   60,  65,  80, 
118,  195,203,249,  259,617, 
825,  831. 

1  &  2,  c.  110,  (Insolvency,  Judgments), 

29,  136,  278,  350,  476,  658. 

2  &  3,  c.  11,  (Judgments),  669. 

3  &  4,  c.  77,  (Grammar-school  Act), 

500. 


3  &  4,  c.  82,  (Judgments),  670. 
5,  c.  5,   (Abolition  of  Equity  Exche- 
quer Jurisdiction),  859. 

5  &  6,  c.  116,  (Insolvent  Act),  278. 

6  &  7,  c.  18,  s.  74,  (Right  of  Voting), 

271,  593. 
c.  73,  (Solicitors'  Act),  561. 

7  &  8,  c.  45,  s.  2,   (Dissenters'  Reli- 

gious Property  Limitation 
Act),  497. 

c.  66,  (Aliens),  39,  43. 

c.  76,  (Real  Property  Amend- 
ment Act,  now  repealed),  156, 
236,  412. 

c.  92,  (Right  of  voting  for  Coro- 
ners), 593. 

c.  96,  (Insolvency),  278. 

8  &  9,  c.  16,  s.  20,  (Companies'  Clauses 

Act),  859. 
c.  106,  (Real  Property  Amend- 
ment Act),   412,    424,    600, 
817. 
10  &  11,  c.  96,   (Trustee  Relief  Act), 
375,  et  seq.,  785. 

12  &  13,  c.  106,  (Bankrupt  Law  Conso- 

lidation Act),  29,  273,  277, 
287,  477,479,  714. 

13  &  14,  c.  35,  (Sir  G.  Turner's  Act), 

368. 
c.  60,  (Trustee  Act,  1850),  283, 
286,  714,  840,  847. 

14  &   15,  c.  83,   (Court  of  Appeal  in 

Chancery),  714. 

15  &  16,  c.  86,   (Chancery  Amendment 

Act),  854,  860,  866. 

16  &  17,  c.  137,  (Charitable  Trusts  Act, 

1853),  499,  717,  718,  184,  et 
seq. 

18  &  19,  c.  15,  (Judgments),   657,  669. 

c.  124,  (Charitable  Trusts' 
Amendment  Act,  1855),  382, 
504,  511,  785,  786. 

19  &  20,  c.  50,  (Sale  of  Parish  Advow- 

sons),  107. 
c.  94,    (Uniform  Administra- 
tion of  Estates),  797. 


INTRODUCTORY    VIEW 

OF    THE 

RISE   AND   PROGRESS    OF   TRUSTS. 


The  origin  of  trusts,  or  rather  the  adaptation  of  them  to  the  English 
law,  may  be  traced  to  the  ingenuity  of  fraud.  By  the  interposition  of  a 
trustee  the  debtor  thought  to  withdraw  his  property  out  of  the  reach  of 
his  creditor,  the  freeholder  to  intercept  the  fruits  of  tenure  from  the  lord 
of  whom  the  lands  were  held,  and  the  body  ecclesiastic  to  evade  the 
restrictions  directed  against  the  growing  wealth  of  the  church  by  the 
statutes  of  mortmain.  Another  inducement  to  the  adoption  of  the  new 
system  was  the  natural  anxiety  of  mankind  to  acquire  that  free  power  of 
alienation  and  settlement  of  their  estates,  which,  by  the  narrow  policy  of 
the  common  law,  they  had  hitherto  been  prevented  from  exercising. 

Originally,  the  only  pledge  for  the  due  execution  of  the  trust  was  the 
faith  and  integrity  of  the  trustee ;  but  the  mere  feeling  of  honour  proving, 
as  was  likely,  when  opposed  to  self-interest,  an  extremely  precarious  secu- 
rity, John  Waltham,  Bishop  of  Salisbury,  a  chancellor  in  the  reign  of 
Richard  the  Second,  originated  the  writ  of  subjxxna,  by  which  the  trustee 
was  liable  to  be  summoned  *into  Chancery,  and  compellable  to  r-  ^9  -i 
answer  upon  oath  the  allegations  of  his  cestui  que  trust.  No  L  ""  J 
sooner  was  this  protection  extended,  than  half  the  lands  in  the  kingdom 
became  vested  in  feoffees  to  uses.  Thus,  in  the  words  of  an  old  coun- 
sellor, the  Parents  of  the  trust  were  Fraud  and  Fear,  and  a  Court  of  Con- 
science was  the  Nurse. (a) 

Of  trusts  there  were  two  kinds  :  the  simple  trust,  and  the  special  trust. 
The  simple  trust,  which  also  passed  by  the  name  of  a  use,  was  defined  in 
legal  phraseology  to  be,  "  a  confidence,  not  issuing  out  of  the  land,  but 
as  a  thing  collateral,  annexed  in  privity  to  the  estate  of  the  land,  and  to 
the  person  touching  the  land,  scilicet,  that  cestui  que  use  should  take  the 
pi'ofit,  and  that  the  terre-tenant  should  execute  an  estate  as  he  should 
direct."(t)  In  order  rightly  to  understand  what  was  meant  by  this  rather 
technical  description,  we  shall  briefly  consider  the  principles  that  were 

(a)  Attorney-Geueral  v.  Sands.  Hard.  491.  (6)  Co.  Lit.  272,  b. 


g2  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

recognized  by  courts  of  equity  (for  these  had  the  exclusive  jurisdiction 
of  trusts,)  first,  with  reference  to  the  terre-tenant  or  feoffee  to  uses,  and 
secondly,  with  reference  to  the  beneficial  proprietor,  or  cestui  que  use. 

With  respect  to  the  feoffee  to  uses,  it  was  held  to  be  absolutely  indis- 
pensable that  there  should  be  confidence  in  the  person,  and  privity  of 
estate.  For  want  of  the  requisite  of  pergonal  confidence  it  was  ruled  that 
a  corporation  could  not  stand  seised  to  a  use ;  for  how,  it  was  said,  could 
a  corporation  be  capable  of  confidence  when  it  had  not  a  soul  ?  Nor  was 
it  competent  for  the  king  to  sustain  the  character  of  trustee ;  for  it  was 
thought  inconsistent  with  his  high  prerogative  that  he  should  be  made 
responsible  to  his  own  subject  for  the  due  administration  of  the  estate. 
^^o-\  *And  originally  the  subpoena  lay  against  the  trustee  himself  only, 
L  -I  and  could  not  have  been  sued  against  either  his  heir  or  assign  j  for 
the  confidence  was  declared  to  be  personal,  and  not  to  accompany  the 
devolution  of  the  property.(c)  But  the  doctrine  of  the  court  in  this 
respect  was  subsequently  put  on  a  more  liberal  footing,  and  it  came  to  be 
held  that  both  heir  and  assign  should  be  liable  to  the  execution  of  the  use. 
An  exception  however  was  still  made  in  favour  of  a  purchaser  for  valuable 
consideration  not  affected  by  notice. (f/) 

The  meaning  of  privity  of  estate  may  be  best  illustrated  by  an  example. 
Had  a  feoffment  been  made  to  A.  for  life  to  his  own  use,  with  remainder 
to  B.  in  fee  to  the  use  of  C,  and  then  A.  had  enfeoffed  D.  in  fee,  in  this 
case,  though  D.  had  the  land,  yet,  as  he  did  not  take  the  identical  estate 
in  the  land  to  which  the  use  in  favour  of  C.  was  attached,  he  was  not 
bound  by  C.'s  equitable  claim.  And,  by  the  same  rule,  neither  tenant 
by  the  curtesy,  nor  tenant  in  dower,  nor  tennnth  j  elegit,  was  liable  to  the 
execution  of  the  use,  for  their  interests  were  new  and  original  estates, 
and  could  not  be  said  to  have  been  impressed  with  the  use.  So  the  lord 
who  was  171  by  escheat,  a  disseisor,  abator,  and  intruder,  were  not  ame- 
nable to  the  subpoena  ;  for  the  first  claimed  by  title  paramount  to  the 
creation  of  the  use ;  and  the  three  last  were  seised  of  a  tortious  estate, 
and  held  adversely  to  the  feoffee  to  uses. 

With  respect  to  the  cestui  que  use,  the  principle  upon  which  his  whole 
estate  depended  was  also  what  in  legal  language  was  denominated  privity. 
Thus,  on  the  death  of  the  original  cestui  que  use,  the  right  to  sue  the  sub- 
r*4.T  P'^^^'^  was  held  to  descend  indeed  to  the  heir  on  the  ground  of 
•-  -■  *ha'rcs  eadem  persona  cum  antecessore  ;  but  the  wife  of  the  cestui 
que  use,  or  the  husband  of  a  feme  cestiii  que  use,  and  a  judgment  credi- 
tor, were  not  admitted  to  the  same  privilege ;  for  their  respective  claims 
were  founded  not  on  privity  with  the  person  of  the  cestui  que  use,  but  on 
the  course  and  operation  of  law.  And  for  the  like  reason  a  use  was  not 
assets,  was  not  subject  to  forfeiture,  and  on  failure  of  heirs  in  the  inheri- 
table line  did  not  escheat  to  the  lord.  And  as  a  use  was  regarded  in  the 
light  of  a  chose  in  action,  that  is,  a  mere  right  to  enforce  a  claim  against 
another  in  a  court  of  equity,  the  use  was  held  not  to  be  assignable. (e) 

The  special  trust  (for  hitherto  we  have  spoken  of  the  simple  trust  or 
use  only)  was  where  the  conveyance  to  the  trustee  was  to  answer  some 

(c)  8  E.  4,  G ;  22  E.  4,  6.  (d)  Keilway,  42,  b. 

(e)  Finch  s  case.  4  Inst.  85. 


INTRODUCTION.  §3 

particular  and  spocific  purpose,  as  upon  trust  to  reconvey  in  order  to 
change  the  line  of  descent,  upon  trust  to  sell  for  payment  of  debts,  &c. 
In  the  special  trust  the  duty  of  the  trustee  was  not,  as  in  the  use,  of  a 
mere  passive  description,  but  imposed  upon  him  the  obligation  of  exert- 
ing himself  in  some  active  character  for  the  accomplishment  of  the  object 
for  which  the  trust  was  created.  In  ease  the  trustee  neglected  his  duty, 
the  cestui  que  trust  was  entitled  to  file  a  bill  in  chancery,  and  compel  him 
to  proceed  in  the  execution  of  his  oflBice.(/) 

Both  the  use  and  the  special  trust  were  applicable  to  chattels  real  and 
personal,  as  well  as  to  freeholds ;  but  trusts  of  chattels  were  for  obvious 
reasons  much  less  frequently  in  practice.  The  amount  of  the  property 
was  small ;  the  owner,  even  without  the  interposition  of  a  trustee,  had 
the  fullest  control  and  dominion  over  it ;  and  a  chattel  interest,  p^--i 
*as  it  followed  the  person,  was  equally  subject  to  forfeiture  whether  L  -I 
in  the  custody  of  a  trustee,  or  in  the  hands  of  the  beneficial  proprietor.  ((7^ 
But  to  the  extent,  whatever  it  was,  to  which  trusts  of  chattels  were 
adopted,  they  were  conducted  upon  the  same  principles,  mutatis  mutan- 
dis, as  were  trusts  of  freeholds  ;  the  right  to  sue  a  suhpoeyia  turned  equally 
on  privity, (^)  and  the  interest  of  the  cestui  que  trust  was  held  not  to  be 
assignable. /ii 

Such  was  the  nature  of  trusts  as  they  stood  at  common  laiv  ;  but  the 
manifold  frauds  and  mischiefs  to  which  the  new  system  gave  occasion, 
particularly  «<  the  great  unsurety  and  trouble  arising  thereby  to  pur- 
chasers," called  loudly  from  time  to  time  for  the  enactment  of  remedial 
statutes.  One  of  the  most  important  of  these  was  the  1  Hie.  3,  c.  1,  the 
substance  of  which  may  be  well  expressed  in  the  terms  of  the  preamble, 
viz.,  that  "  all  acts  made  by  or  against  a  cestui  que  xise  should  be  good 
as  against  him,  his  heirs,  and  feofi'ees  in  trust,"  in  other  words,  that  all 
dealings  of  the  cestui  que  use  with  the  trust  property  should  have  pre- 
cisely the  same  legal  operation,  as  if  the  cestui  que  use  had  himself  pos- 
sessed the  legal  ownership.  To  what  interests  the  legislature  intended 
this  statute  to  apply  has  not  on  all  hands  been  agreed.  A  feoftment  in 
fee  to  uses  was  clearly  the  case  primarily  intended.  Upon  a  feofi'ment 
in  tail,  it  seems  no  use  could  have  been  declared,  for  a  tenant  in  tail 
was  incapacitated  by  the  statute  de  donis  from  executing  estates. (/.;) 
With  respect  to  a  feoifment  for  life  to  uses,  there  appears  to  be  no  rea- 
son upon  principle  (except  so  far  as  the  language  of  the  act  may  be 
thought  to  furnish  any  inference,)  and  certainly  there  is  no  objection  on 
the  *score  of  authority,  why  the  cestui  que  use  might  not  have  p^p-i 
passed  the  legal  estate  by  virtue  of  the  statutory  power.  It  has  L  J 
been  contended  by  Mr.  Sanders,  that  on  a  feofi'ment  for  life  no  use  could 
have  been  declared,  on  the  ground  that,  as  the  tenant  for  life  held  of 
the  reversioner,  the  consideration  of  tenure  would  have  conferred  a  title 
to  the  beneficial  interest  on  the  tenant  for  life  himself. 0  But  this  rea- 
soning can  have  no  application  where  the  estate  for  life  was  not  created, 

(/)  See  the  case  in  the  reigu  of  Hen.  7,  Append,  to  Treat,  of  Powers,  No.  1. 
(g)  5  H.  5,  3,  6.  (A)  Witham's  case,  4  Inst.  87. 

(«■)  Jenk.  244,  c.  30.  {k)  Co.  Lit.  19,  b. 

(/)  Sand,  on  Uses,  c.  1,  s.  6,  div.  2. 


84        LEVIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

but  was  merely  transferred,  for  then  the  assignment  of  the  life  estate 
was  not  distinguishable  in  this  respect  from  a  conveyance  of  the  fee ;  in 
each  case  there  was  no  consideration  of  tenure  as  between  the  grantor 
and  grantee,  but  in  each  case  the  services  incident  to  tenure  were  due 
from  the  grantee  to  a  third  person. (1)  It  is  clear  that  the  statute 
embraced  uses  of  lands  only,  and  did  not  extend  either  to  sj^cQial  trusts, 
or  to  trusts  of  chattels  :  not  to  special  trusts,  because  the  trustee  com- 
bined in  himself  both  the  legal  estate  and  the  use,  though  compellable 
in  chancery  to  direct  them  to  a  particular  purpose ;  and  not  to  trusts  of 
chattels,  because  the  preamble  and  the  statute  were  addressed  to  cestui 
que  use  and  his  heirs,  and  to  feoffees  in  trust. 

P^„-,  *The  mischiefs  of  the  system  increasing  more  and  more,  (the 
L  '  J  statute  of  Kichard  occasioning  still  greater  evils  than  it  remedied, 
from  the  facility  it  gave  to  the  cestui  que  use  and  his  feoffee,  who  had 
now  each  the  power  of  passing  the  legal  estate,  of  defrauding  by  collusion 
the  honafide  purchaser,)  the  legislature  again  interposed  its  authority 
by  the  27  Hen.  8,  c.  10,  and  thereby  annihilated  uses  as  regarded  their 
fiduciary  character,  by  enacting,  that  "  where  any  person  stood  seised  of 
any  hereditaments  to  the  use,  confidence,  or  trust  of  any  other  person, 
or  of  any  body  politic,  such  person  or  body  politic  as  had  any  such  use, 
confidence,  or  trust,  should  be  deemed  in  lawful  seisin  of  the  heredita- 
ments in  such  like  estates  as  they  had  in  use,  trust,  or  confidence. "(2) 

Vses  by  the  operation  of  this  statute  became  merged  in  the  legal 
estate  ;  but  special  trusts  and  tj'usts  of  chattels  were  not  within  the  pur- 
view of  the  act :  the  former,  because  the  use,  as  well  as  the  legal  interest, 

(1)  The  state  of  the  law  upon  this  subject  appears  to  have  been  as  follows  : — 

1.  On  the  creation  of  an  estate  for  life,  had  no  use  been  mentioned  on  the  face  of 
the  instrument,  the  tenant  for  life  had  held  for  his  own  benefit  in  compensation  of 
his  services ;  Perk.  s.  535 ;  B.  N.  C.  60  ;  Br.  FefF.  al.  Uses,  10  ;  and  no  use  could 
have  been  averred  in  contradiction  to  the  use  implied.     See  Gilb.  on  Uses,  57. 

2.  Had  a  use  been  expressly  declared  by  the  deed,  the  tenant  had  been  bound  by 
the  terms  on  which  he  accepted  the  estate;    Perk.  s.  537;    Br.  Feff.  al.  Uses, 

10,  40.  3.  Unless  a  rent  had  been  reserved,  or  consideration  paid,  in  which  case 
a  court  of  equity  would  not  have  enforced  the  use  against  the  purchaser  for 
valuable  consideration;  B.N.  C.  60;  Br.  FeflF.  al.  Uses,  40.  4.  On  the  assignment 
of  a  life  estate  a  use  might  have  been  declared,  as  on  a  conveyance  in  fee. 

(2)  As  this  statute  does  operate  on  the  use  of  a  life  estate,  but  does  not  apply 
to  a  seisin  in  tail,  the  doctrine  of  Mr.  Sanders,  that  prior  to  the  27  Hen.  8,  there 
was  no  use  of  a  seisin  either  in  tail  or  for  life,  seems  open  to  the  following  objec- 
tions : — 1.  That  the  statute  in  executing  the  use  of  a  life  estate,  operates  on  an 
interest  which  at  the  time  of  the  enactment  had  no  existence ;  and,  2ndly,  That 
in  not  executing  a  use  declared  on  a  seisin  in  tail,  it  operates  differently  on  two 
estates  that  fall  within  precisely  the  same  principle.  To  meet  the  former  objec- 
tion, Mr.  Sanders  holds  the  statute  of  Hen.  8,  to  be  prospective,  and  distinguishes 
it  from  the  statute  of  Richard,  which  he  considers  not  to  be  prospective,  by  ob- 
serving that  the  latter  employs  the  word  "  use"  only,  while  the  former  has  the 
additional  term  of  "trust ;"  but  to  this  it  may  be  answered,  that  although  the  sta- 
tute oi  Richard  does  not  contain  the  word  trust,  the  preamhle  does,  and  that  the 
distinction  contended  for  between  use  and  trust  had  no  existence  until  a  compa- 
tively  recent  period.  See  Altham  v.  Anglesey,  Gilb.  Eq.  Rep.  17.  To  obviate  the 
latter  objection,  it  is  maintained  by  Mr.  Sanders  that  tenant  in  tail  is  within  the 
statute  of  Hen.  8 ;  an  opinion  which,  it  is  submitted,  is  directly  opposed  to  the 
general  stream  of  authority.     Co.  Lit.  19,  b.;  Shep.  Touch.  509;  Gilb.  on  Uses, 

11,  and  Sir  E.  Sugden's  note,  ibid. 


INTRODUCTION.  85 

was  in  the  trustee  ;  the  latter,  because  a  termor  is  said  to  be  possessed, 
and  not  to  be  seised  of  the  property. 

*In  the  room  of  uses  which  were  thus  destroyed  as  they  arose,  r;i,Q-| 
the  judges  by  their  construction  of  the  statute  created  a  novel  L  J 
kind  of  interest,  since  distinguished  by  the  name  of  Trust.  Before  the 
statute  of  Hen.  8,  a  person,  to  have  had  the  complete  ownership,  must 
have  united  the  possession  of  the  land  and  the  use  of  the  profits.  The 
possession  and  the  use  were  even  at  common  law  recognised  as  distinct 
interests,  though  the  cestui  que  use  was  left  to  chancery  for  his  remedy.  («i) 
On  a  feoffment  to  A.  to  the  use  of  B.  to  the  use  of  C,  the  possession 
was  in  A.,  the  use  in  B.,  and  the  limitation  over  to  C.  was  disregarded 
as  surplusage.  When  the  statute  of  Hen.  8,  was  passed,  it  executed  the 
estate  in  B.  by  annexing  the  possession  to  the  use ;  but  having  thus 
hecome  functtis  officio  it  did  not,  as  the  act  was  construed,  affect  the  use 
over  to  C.  Howevei",  chancery,  now  that  uses  were  converted  into 
estates,  decreed  C.  to  have  a  title  in  equity,  and  enforced  the  execution 
of  it  under  the  name  of  a  trust,  (n) 

"  Interests  in  land,"  said  Lord  Hardwicke,  "  thus  became  of  three 
kinds  :  first,  the  estate  in  the  land  itself,  the  ancient  common-law  fee  ; 
secondly,  the  use  which  was  originally  a  creature  of  equity,  but  since  the 
statute  of  uses  it  drew  the  estate  in  the  land  to  it,  so  that  they  were 
joined  and  made  one  legal  estate;  and,  thirdly,  the  trtist,  of  which  the 
common  law  takes  no  notice,  but  which  carries  the  beneficial  interest 
and  profits  in  a  court  of  equity,  and  is  still  a  creature  of  that  court,  as 
the  use  was  before  the  statute. "(o) 

This  newly-created  interest  was  held  to  be  so  perfectly  ^distinct  r^^-, 
from  the  ancient  use,  that  the  statutory  provisions,  by  which  many  L  J 
of  the  mischiefs  of  uses  had  been  remedied,  as  the  19  Hen.  7,  c.  15,  by 
which  uses  had  been  made  liable  to  writs  of  execution,  and  the  26  Hen. 
8,  c.  13,  by  which  they  had  become  forfeitable  to  the  crown  for  treason, 
were  decided  to  have  no  application. (1)  However,  the  trust  took  the 
likeness  of  the  use,  conforming  itself  to  the  nature  of  special  trusts  and 
trusts  of  chattels,  which  had  never  been  disturbed  by  any  legislative 
enactment. 

To  show  how  the  principles  of  uses  prevailed  after  the  statute  of  Hen. 
8,  it  was  held  in  the  reign  of  Elizabeth, (p)  that  the  equitable  term  of  a 
feme  covert  did  not  vest  in  the  husband  by  survivorship,  for  a  trust,  it 
was  said,  was  a  thing  in  privity,  and  in  nature  of  an  action,  and  no  remedy 
for  it  but  by  writ  of  sulpoena.     And  a  few  years  after  in  the  same  reign 

{m)  Lit.  s.  462,  4G3;  Co.  Lit.  272,  b  ;  and  see  Carter,  197;  Porey  v.  Juxon. 
Nels.  135;  Megod's  case,  Godb.  64. 

in)  See  Hopkins  v.  Hopkins,  1  Atk.  591. 

(0)  Willet  V.  Sandford,  1  Ves.  186 ;  Coryton  v.  Helyar,  2  Cox,  342. 

{p)  Witham's  case,  4  Inst.  87  ;  S.  C.  Popham,  106,  sub  nomine  Johnson's  case. 

(1)  As  the  statutes  relating  to  uses  have  never  been  repealed,  but  are  merely 
inoperative  from  the  want  of  any  subject-matter,  the  question  suggests  itself  whe- 
ther they  be  not  still  applicable  to  a  use  created  by  a  bargain  and  sale  not  by  in- 
denture, or  by  indenture  not  duly  enrolled;  for  as  the  27  Hen.  8,  c.  10,  is  pre- 
vented from  transferring  the  possession,  the  old  common-law  use  seems  in  this  case 
to  survive.     See  Shep.  Touch.  508. 


S6  LEWIX    ON    THE    LAW    OF    TRUSTS,    ETC. 

it  was  resolved  by  all  tlie  judges  that  a  trust  was  a  matter  of  privity  and 
in  nature  of  a  cliose  in  action,  and  therefore  was  not  assignable. (5)  And 
in  the  sixth  year  of  King  Charles  the  First  it  was  decided  by  the  judges, 
that  as  a  feme  was  dowable  by  act  or  rule  of  law,  and  a  Court  of  Equity 
had  no  jurisdiction  where  there  was  not  fraud  or  covin,  the  widow  of  a 
trustee  was  entitled  beneficially  to  her  dower  out  of  the  trust  estate. (r) 
_j^  „ -,  But  during  the  reigns  of  Charles  the  First  and  Charles  *the 
t  J  Second,  and  particularly  during  the  chancellorship  of  Lord  Not- 
tingham, who,  from  the  sound  and  comprehensive  principles  upon  which 
he  administered  trusts,  has  been  styled  the  father  of  equity,(s)  the  courts 
gradually  threw  off  the  fetters  of  uses,  and  disregarding  the  operation  of 
mere  technical  rules,  proceeded  to  establish  trusts  upon  the  broad  foun- 
dation of  conformity  to  the  course  of  common  law.  "  In  my  opinion," 
said  Lord  Mansfield,  '<  trusts  were  not  on  a  true  foundation  till  Lord  Not- 
tingham held  the  great  seal ;  but  by  steadily  pursuing  from  plain  prin- 
ciples trusts  in  all  their  consequences,  and  by  some  assistance  from  the 
legislature,  a  noble,  rational,  and  uniform  system  of  law  has  since  been 
raised ;  so  that  trusts  are  now  made  to  answer  the  exigencies  of  families 
and  all  purposes,  without  producing  one  inconvenience,  fraud,  or  private 
mischief,  which  the  statute  of  Hen.  8,  meant  to  avoid. "(^) 

As  to  the  changes  that  were  successively  introduced,  it  was  held  with 
reference  to  the  trustee,  that  actual  confidence  in  the  person  was  no  longer 
to  be  looked  upon  as  essential.  A  body  corporate  therefore  was  not 
exempted  from  the  writ  of  subpoena  on  the  ground  of  incapacity ;(»)  and 
even  the  king,  notwithstanding  his  high  prerogative,  was  invested  with 
the  character  of  a  royal  trustee,(ij)  though  the  precise  mode  of  enforcing 
the  trust  against  him  was  not  exactly  ascertained  :  to  use  the  language 
of  Lord  Northington,  "  the  arms  of  equity  were  very  short  against  the 
r  *n  1  pi'srogative.'Yw)  The  subtle  distinctions  which  had  ^formerly 
L  J  attended  the  notion  oi.  privity  of  estate  were  also  gradually  dis- 
carded. Thus  it  was  laid  down  by  Lord  Hale,  that  tenant  in  dower 
should  be  bound  by  a  trust  as  claiming  in  the  per  by  the  assignment  of 
the  heir  ;(a:)  and  so  it  was  afterwards  determined  by  Lord  Nottingham  5(3/) 
and  when  an  old  case  to  the  contrary  was  cited  before  Lord  Jeffries,  it 
was  unanimously  declared  both  by  the  bench  and  the  bar  to  be  against 
equity  and  the  constant  practice  of  the  court.  (2)  A  tenant  by  statute 
merchant  was  held  to  be  bound  upon  the  same  principle,  for  he  took,  it 
was  said,  by  the  act  of  the  party,  and  the  remedy  which  the  law  gave 
thereupon. (a)     But  as  to  tenant  by  the  curtesy.  Lord  Hale  gave  his 

{q)  Sir  Moyl  Finch's  case,  4  Inst.  86. 
(r)  Nash  v.  Preston,  Cro.  Car.  190. 

(s)  Philips  V.  Brydges,  3  Ves.  12T  ;  Kemp  v.  Kemp,  5  Yes.  858. 
(0  Burgess  v.  Wheate,  1  Ed.  223. 

(m)  See  Green  v.  Rutherworth,  1  Ves.  468 ;  Attorney-General  v.  Whorwood,  1 
Ves.  536.  '  >  J 

{v)  See  Penn  v.  Lord  Baltimore,  1  Ves.  453  ;  Earl  of  Kildare  v.  Eustace,  1  Vern. 
-29-  {iv)  Burgess  v.  Wheate,  1  Ed.  256. 

{x)  Pawlett  T.  Attorney-General,  Hard.  469.  {y)  Noel  v.  Jevon,-Freem.  43. 

{z)  MS.  note  by  an  old  hand  in  the  copy  of  Croke's  Reports  in  Lincoln's  Inn 
Library,  Cro.  Car.  191. 

(a)  Pawlett  v.  Attorney-General,  Hard.  467,  per  Lord  Hale. 


I X  T  R  0  D  U  C  T  I  0  N.  87 

opinion,  that  one  in  the  posi  should  not  be  liable  to  a  trust  without  express 
mention  made  hy  the  party  xcho  created  it  ;  and  therefore  tenant  by  the 
curtesy  should  not  be  bound  :(6)  but  his  lordship's  authority  on  this 
point  was  subsequently  overruled,  and  curtesy  as  well  as  dower  was  made 
to  follow  the  general  principle. 

With  respect  to  the  cestui  que  trust,  or  the  person  entitled  to  the  sub- 
poena, the  narrow  doctrine  contained  under  the  technical  expression  of 
privity  began  equally  to  be  waived,  or  rather  to  be  applied  with  conside- 
rable latitude  of  construction.  "  The  equitable  interest,"  said  Justice 
Kolle,  "is  not  a  thing  in  action,  but  an  inheritance  or  chattel,  as  the 
case  may  fall  out;"(c)  and  when  once  the  trust,  instead  of  passing  as  a 
chose  in  action,  came  to  be  treated  on  the  footing  of  an  actual  estate,  it 
soon  drew  to  *it  all  the  rights  and  incidents  that  accompanied  p^-.,^.. 
property  at  law;  thus,  the  equity  of  the  cestiii  que  trust,  though  L  -  J 
a  bare  contingency  or  possibility.^cZ]  was  admitted  to  be  assignable  ;(e] 
and  Witham's  case,  that  a  husband  who  survived  his  wife  could  not,  for 
want  of  privity,  claim  her  equitable  chattel,  was  declared  by  the  court  to 
be  no  longer  an  authority. (/)  So  a  judgment  creditor,  it  was  held  by 
Lord  Nottingham,  might  prosecute  an  equitable  fieri  facias  ;{()^  and 
though  Lord  Keeper  Bridgman  refused  to  allow  an  equitable  elegit,{Ji^  it 
is  probable,  had  the  question  arisen  before  Lord  Nottingham,  his  lord- 
ship would  in  this,  as  in  other  cases,  have  acted  on  a  more  liberal  prin- 
ciple ;  at  all  events,  the  creditor's  right  to  relief  in  this  respect  has  since 
been  established  by  the  current  of  modern  authority,  (i)  Again,  a  trust 
was  decided  by  Lord  Nottingham  to  be  assets  in  the  hands  of  the  heir  ;(^-) 
and  though  Lord  Gruildford  afterwards  oveiTuled  this  decision, (?)  yet  Lord 
Nottingham's  view  of  the  subject  appears  to  have  been  eventually  esta- 
blished.(?h)  Curtesy  also  was  permitted  of  a  trust  estate,  though  the 
widow  of  cestui  que  trust  could  never  make  good  her  title  to  dower  ;(?ij 
"not,"  said  Lord  Mansfield,  "on  reason  or  principle,  but  because  wrong 
determinations  had  misled  in  too  many  instances  to  be  then  setright;"(o) 
or  rather,  as  Lord  Redesdale  thought,  because  the  admission  of  dower 
would  *have  occasioned  great  inconvenience  to  purchasers — a  r  ^i:-!  o  -i 
mischief  that  in  the  case  of  curtesy  was  not  equally  to  be  appro-  L  '  J 
hended.(p ) 

Lord  Mansfield  was  for  carrying  the  analogy  of  trusts  to  legal  estates, 
beyond  the  legitimate  boundary.  "  A  use  or  trust,"  he  said,  "  was 
heretofore  understood  to  be  merely  as  an  agreement,  by  which  the  trus- 
tee and  all  claiming  from  him  in  privity  were  personally  liable  to  the 
cestui  que  use,  di\i(\.  all  claiming  under  him  in  like  privity ;   nobody  in 

{b)   S.  C.  lb.  469. 

(c)  King  V.  Holland,  Stvl.  21 ;  see  Casburne  v.  Casburne,  2  J.  &  W.  196. 
\d)  Warmstrey  v.  Taufield,  1  Ch.  Re.  29 ;  Lord  Cornburj  v.  M:iddleton,  1  Cb: 
Ca.  208  ;  Goring  v.  Bickerstaff,  1  Ch.  Ca.  8. 

(«)  Courthope  v.  Hevman,  Cart.  25,  per  Lord  Bridgman. 

(/)  King  V.  Holland.  Al.  15. 

\g)  Anon.  case,  cited  Balsh  v.  Wastall,  1  P.  W.  445;   Pit  v.  Hunt,  2  Ch.  Ca.  73. 

(h)  Pratt  V.  Colt.  Freem.  139.  (0  See  infra. 

(k)  Gre3'  v.  Colville.  2  Ch.  Re.  143.  (/)  Creed  v.  CovUe,  1  Vern.  172. 

(m)  See  infra.  '  («)  Colt  v.  Colt,  1  Ch.  Re.  254. 

(o)  Burgess  v.  Wheate.  1  Ed.  224.  {f)  See  infra. 


8g  LEWIN    OX    THE    LAW    OF    T  R  T  S  T  S,    ETC. 

the  post  was  entitled  under  or  bound  by  tbe  agreement ;  but  now  the 
trust  in  this  court  is  the  same  as  the  land,  and  the  trustee  is  considered 
merely  as  an  instrument  of  conveyance."  (?)  And  in  the  apphcation  of 
this  principle  his  lordship  argued,  that  the  estate  of  the  cestui  que  tritst 
was  subject  to  escheat,  and  that,  on  failure  of  heirs  of  the  trustee,  the 
lord  who  took  by  escheat  was  bound  by  the  trust.  But  to  these  propo- 
sitions the  courts  of  equity  have  never  yet  assented.  The  hmit  to  which 
the  analocry  of  trusts  to  legal  estates  ought  properly  to  be  allowed  was 
well  enunciated  by  Lord  Northington  in  the  case  of  Burgess  v.  Wheate. 
"  It  is  true,"  he  said,  "  this  court  has  considered  trusts  as  between  the 
trustee,  cestui  que  trust,  and  those  claiviing  under  them,  as  imitating 
the  possession  ;  but  it  would  be  a  bold  stride,  and,  in  my  opinion,  a 
dangerous  conclusion,  to  say  therefore  this  court  has  considered  the  crea- 
tion^and  instrument  of  trust  as  a  mere  nullity,  and  the  estate  in  all  re- 
spects the  same  as  if  it  still  continued  in  the  seisin  of  the  creator  of  the 
trust,  or  the  person  entitled  to  it:  for  my  own  part  Ihnow  no  instance 
where  this  court  has  perynitted  the  creation  of  the  trust  to  affect  the 
bright  of  a  third  person  ;"(r)  that  is,  to  illustrate  the  principle 
[  ""^^  J  by  instances,  a  tenant  by  the  curtesy,  or  in  dower,  or  by  elegit,  as 
claiming  through  the  cestui  (jue  trust  or  trustee,  though  in  the  jwst,  is 
bound  by  and  may  take  advantage  of  the  trust ;  but,  according  to  Lord 
Northington,  the  lord,  who  comes  in  by  escheat  is  not  in  any  sense  a 
privy  to  the  trust,  and  therefore  can  neither  reap  a  benefit  from  it  on 
failure  of  heirs  of  the  cestui  que  trust,  nor  is  bound  by  the  equity  on 
failure  of  heirs  of  the  trustee. (s) 


[*1.5]  CHAPTER   L 

DEFINITION  OF  A  TRUST. 

As  the  doctrines  of  trusts  are  equally  applicable  to  real  and  2>ersonal 
estate,  and  the  principles  that  govern  the  one  will  be  found,  mutatis 
mutandis,  to  govern  the  other,  we  cannot  better  describe  the  nature  of 
a  trust  generally,  than  by  adopting  Lord  Coke's  definition  of  a  use,  the 
term  by  which,  before  the  Statute  of  Uses,  a  trust  of  lands  was  desig- 
nated.(o)  A  trust,  in  the  words  applied  to  the  use,  may  be  said  to  be 
"  A  confidence  reposed  in  some  other,  not  issuing  out  of  the  land,  hut  as 
a  thing  collateral,  annexed  in  privity  to  the  estate  of  the  land,  and  to 
the  person  touching  the  land,  for  %chich  cestui  que  trust  has  no  remedij 
but  by  subpoena  in  Chancery." (b'j 

1.  It  is  a  confidence  ;  not  necessarily  a  confidence  expressly  reposed  by 

(q)  Burgess  v.  Wheate,  1  Ed.  226.  (r)  lb.  250,  251. 

[s)  It  is  clear  that  the  lord  cannot  acquire  an  equitable  interest  by  escheat ; 
Burgess  V.  Wheate,  I  Ed.  177;  Cox  v.  Parker,  2  Jur.  N.  S.  842;  but  whether  a 
lord  taking  the  legal  estate  by  escheat  shall  or  not  be  bound  by  the  trust,  has 
never  been  decided.  See  Evans  v.  Brown,  5  Beav.  114 ;  Viscount  Downe  v.  Mor- 
ris, 3  Hare,  409. 

(a)  Burgess  v.  Wheate.  1  Ed.  248,  per  Lord  Keeper  Henley ;  Lloyd  v.  Spillet,  2 
Atk.  150,  per  Lord  Harkwicke.  '  (6)  Co.  Lit.  272,  b. 


DEFINITION    OF    A    TRUST.  89 

one  party  in  anotlier,  for  it  may  be  raised  by  implication  of  law  :  and  the 
trustee  of  the  estate  need  not  be  actually  capable  of  confidence,  for  the 
capacity  itself  may  be  supplied  by  legal  fiction,  as  where  the  administra- 
tion of  the  trust  is  committed  to  a  body  corporate ;  but  a  trust  is  a  con- 
fidence, as  distinguished  from^^s  in  re  andy»s  ad  rem,  for  it  is  neither 
a  legal  property,  nor  a  legal  right  to  property.(c) 

2.  It  is  a  confidence  reposed  in  some  other ;  not  in  some  other  than 
the  author  of  the  trust,  for  a  person  may  convert  himself  into  a  trustee, 
but  in  some  other  than  cestui  que  trust ;  for  as  a  man  cannot  sue  a  sub- 
poena against  himself,  he  cannot  be  said  to  hold  upon  trust  for  himself. ((/) 
If  the  legal  and  *equitable  interests  happen  to  meet  in  the  same  r  »:-i  p  -i 
person,  the  equitable  is  for  ever  absorbed  in  the  legal ;  as  if  A.  be  L  -■ 
seised  of  the  legal  inheritance  ex  parte  paterna,  and  of  the  equitable  ex 
parte  materna,  upon  the  death  of  A.  the  heir  of  the  maternal  line  has  no 
equity  against  the  heir  of  the  paternal. (e)  And  the  same  rule  prevails 
as  to  leaseholds  for  lives. (/)  If,  for  instance,  the  legal  estate  in  a  free- 
hold lease  be  vested  in  a  husband  and  his  heirs,  in  trust  for  the  wife  and 
her  heirS;  the  child  who  is  the  heir  of  both,  and  takes  the  legal  estate 
ex  parte  paterna,  and  the  equitable  estate  ex  parte  materna,  will,  by 
the  merger  of  the  equitable  in  the  legal,  become  seised  both  at  law  and 
in  equity  ex  parte  paterna,  and  the  subsequent  devolution  will  be 
regulated  accordingly. 

But  this  rule  holds  only  where  the  legal  and  equitable  estates  are  co- 
extensive and  commensurate  ;  for  if  a  person  be  seised  of  the  legal  estate 
in  fee,  and  have  only  a  partial  equitable  interest,  to  merge  the  one  in  the 
other  might  occasion  an  injurious  disturbance  of  rights.  Thus  before 
the  Fines  and  Recoveries  Act,((7)  if  lands  had  been  conveyed  to  A.  and 
his  heirs,  in  trust  for  B.  in  tail,  with  remained  to  A.  in  fee,  had  the 
equitable  remainder  limited  to  A.  been  converted  into  a  legal  estate,  it 
would  not  have  been  barrable  by  B.'s  equitable  recovery.(/i)  Lord 
Alvanley  upon  this  case  observed — "  It  was  maintained,  that  where 
there  is  in  the  same  person  a  legal  and  equitable  interest,  the  former 
absorbs  the  latter.  I  admit  that  where  he  has  the  same  interest  in  both, 
he  ceases  to  have  the  equitable  estate,  and  has  the  legal  estate,  upon 
which  the  court  will  not  act,  but  leaves  it  to  the  rules  of  law ;  but  I  do 
not  by  any  means  admit,  that  where  he  has  the  whole  legal  estate  and  a 
partial  equitable  estate,  the  latter  sinks  into  the  former.  It  has  been 
very  ably  argued,  that  there  seems  an  absurdity  in  saying  he  had  an 
equitable  remainder  for  himself,  *where  he  had  the  whole  legal  j-  ^y.  -. 
fee  ;  but  it  is  much  more  absurd  to  say  he  had  a  legal  remainder.  L         J 

(c)  Bacon  on  Uses,  5.     See  Wainewright  v.  Elwell,  1  Mad.  634. 

{d)  Goodright  v.  Wells,  Dougl.  747,  per  Lord  Mansfield. 

(e)  Selby  v.  Alston,  3  Ves.  339;  Goodright  v.  Wells,  Dougl.  747,  per  Lord  Mans- 
field ;  Wade  v.  Paget,  1  B.  C.  C.  363  ;  S.  G.  1  Cox,  74 ;  Philips  v.  Brydges,  3  Ves. 
126,  per  Lord  Alvanley;  Finch's  case,  4  Inst.  85,  3rd  resolution;  Harmood  v.  Og- 
lander,  8  Ves.  127,  per  Lord  Eldon. 

(/)  Creagh  v.  Blood,  3  Jones  &  Lat.  133.  (^)  3  &  4  W.  4,  c.  74. 

{h)  Philips  V.  Brydges,  3  Ves.  120  ;  Robinson  v.  Cuming,  Rep.  t.  Talb.  164 ;  S. 
C.  1  Atk.  473 ;  and  see  Boteler  v.  Allington,  1  B.  C.  C.  72 ;  Merest  v.  James,  6 
Mad.  118. 


90        LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

It  is  impossible— it  would  be  a  solecism — to  state  to  a  lawyer  that  be 
could  bave  an  estate  in  fee  witb  a  remainder  in  tail  expectant  in  law 
upon  it ;  but  tbere  is  no  sucb  absurdity  in  saying  be  migbt  bave  the 
whole  legal  estate,  and  a  limited  interest  in  the  beneficial  interest  of  that 
estate.  "When  I  am  told  that  legal  and  equitable  estates  cannot  subsist 
in  the  same  person,  it  must  be  understood  always  witb  this  restriction 
— that  it  is  the  same  estate  in  law  and  in  equity  :  for  then  tbere  is  no 
person  upon  whom  the  court  can  act — the  equitable  estate  is  absorbed — 
the  better  phrase  is,  that  it  is  no  longer  exists ;  but  when  for  the  pur- 
poses of  justice  it  is  necessary  it  should  exist,  that  circumstance  shall 
not  put  a  party  entitled  into  a  worse  condition. (t)" 

Again,  in  Habergham  v.  Vincent,(A-)  a  testator  devised  copyhold  lands 
to  five  trustees,  upon  trust  to  convey  the  estate  to  certain  uses,  which 
failed,  with  an  ultimate  limitation  to  the  heirs  of  the  surviving  trustee. 
On  a  bill  filed  by  the  heir-at-law  of  the  testator  against  the  surviving 
trustee,  Lord  Loughborough  observed — "  It  is  impossible  to  contend  that 
under  the  limitation  to  the  right  heir  of  the  surviving  trustee,  the  trustee 
can  take  the  fee  beneficially."  But  on  a  subsequent  day,  he  added — "I 
am  not  so  clear  that  if  anything  passed  under  the  remainder  to  the  right 
heir  of  the  surviving  trustee,  it  would  not  be  the  fee  to  the  trustee  him- 
self. Otherwise  I  must  declare  him  a  trustee  for  bis  own  right  heir.  I 
doubt  whether  a  man  having  the  legal  estate  himself  could  be  a  trustee 
of  the  equitable  interest  for  his  own  right  heir.  I  take  it  a  man  owes  no 
duty  to  his  own  heir-at-law."  But  eventually  the  court  arrived  at  a  dif- 
ferent conclusion,  and  a  settlement  was  directed,  so  as  to  give  the  ultimate 
remainder  to  the  right  heir  of  the  trustee  as  a  purchaser. 

In  the  case  of  a  mortgage  in  fee  it  is  said,  a  man  and  bis  heirs  are 
trustees  for  himself  and  his  executors  -Jl)  the  meaning  is  that,  until  a 
release,  or  foreclosure  of  the  equity  of  redemption,  the  interest  of  the 
P  ^,  Q  -.  mortgagee  is  of  the  nature  of  ^personalty,  and  passes  on  his  death 
L  -I  to  his  personal  representative ;  the  heir,  therefore,  takes  the  estate 
upon  trust  for  the  executor.  A  release  or  foreclosure,  unless  it  happen 
in  the  lifetime  of  the  mortgagee,  comes  too  late  after  his  decease  to  alter 
the  character  of  the  property,  for,  as  the  tree  falls,  so  it  must  lie.(^m'^(l) 
3.  A  trust  is  not  issuing  out  of  the  land,  hut  as  a  thing  collateral  to 
it.  A  legal  charge,  as  a  rent,  issues  directly  out  of  the  land  itself,  and 
therefore  binds  every  person,  whether  in  the  per  or  post,  whether  a  pur- 
chaser for  valuable  consideration  or  volunteer,  whether  witb  notice  or 
without ;  but  a  trust  is  not  part  of  the  land,  but  an  incident  made  to 
accompany  it,  and  that  not  inseparably,  but  during  the  continuance  only 
of  certain  indispensable  adjuncts ;  for — 

(0  Philips  v.  Brydges,  3  Yes.  125-12Y.  {k)   2  Yes.  jun.  204. 

{l)  Kendal  v.  Micfield,  Barn.  50,  per  Lord  Hardwicke. 

[m)  Canning  v.  Hicks,  2  Cb.  Ca.  187:  S.  C.  1  Vern.  412;  Tabor  v.  Grover,  2 
Yern.  3G7  ;  S.  C.  1  Eq.  Ca.  Ab.  328 ;  Clerkson  v.  Bowyer,  2  Yern.  66 ;  Gobe  v.  Earl 
of  Carlisle,  cited  ib. ;  Wood  v.  Nosworthy,  cited  Awdley  v.  Awdley,  2  Vern.  193. 

(1)  But  if  the  heir  foreclose,  or  obtain  a  release  of  the  equity  of  redemption,  it 
is  said  he  may  keep  the  estate,  and  pay  the  executor  the  debt  only.  Clerkson  v. 
Bowyer,  2  Yern.  67,  per  Cur.     But  qusere. 


DEFINITION    OF    A    TRUST.  91 

4.  A  trust  is  annexed  in  ■privity  to  the  estate,  that  is,  must  stand  or 
fall  with  the  interest  of  the  person  by  whom  the  trust  is  created ;  as,  if 
the  trustee  die  and  leave  no  heir,  it  was  the  opinion  of  Lord  Northington 
that  the  lord  who  takes  by  escheat  is  not  a  privy  to  the  estate  upon  which 
the  trust  was  ingrafted,  and  therefore  will  not  be  bound  by  it,  but  will 
hold  beneficially. (?i)  And  upon  the  same  principle,  if  the  trustee  be 
disseised,  the  tortious  fee  is  adverse  to  that  impressed  with  the  trust,  and 
therefore  the  equitable  owner  cannot  sue  the  disseisor  in  Chancery,  but 
must  bring  an  action  against  him  at  law  in  the  name  of  the  trustee. (o) 

During  the  system  of  uses,  and  also  while  trusts  were  in  their  infancy, 
the  notion  of  privity  of  estate  was  not  extended  to  tenant  by  the  curtesy, 
or  in  dower,  or  by  deg!t,  or  in  fact  to  any  person  claiming  by  operation 
of  law,  though  through  the  trustee  ;  but  in  this  respect  the  landmarks 
have  since  been  *carried  forward,  and  at  the  present  day  a  trust  r  ;|c-|q  -i 
follows  the  estate  into  the  hands  of  every  one  claiming  under  the  L  J 
trustee,  whether  in  the  j^er  or  iwst.  A  lord  by  escheat,  as  Lord  North- 
ington thought,  would  be  still  an  exception ;  and  a  disseisor  is  unques- 
tionably not  bound,  for  he  asserts  a  new  and  adverse  estate. 

5.  A  trust  is  annexed  in  privity  to  the  person.  To  entitle  the  cestui 
que  trust  to  relief  in  equity  it  is  not  only  necessary  he  should  prove  the 
creation  of  the  trust,  and  the  continuance  of  the  estate  supporting  it,  but 
should  also  evince  that  the  assign  is  personally  privy  to  the  equity,  and 
therefore  amenable  to  the  suhj^oena.  If  it  can  be  shown  that  the  assign 
had  actual  notice,  then,  whether  he  paid  a  valuable  consideration  or  not, 
he  is  plainly  privy  to  the  trust,  and  bound  to  give  it  effect ;  but  if  actual 
notice  cannot  be  proved,  then,  if  he  be  a  volunteer,  the  court  will  still 
affect  him  with  notice  by  presumption  of  law ;  but  if  he  be  a  purchaser, 
the  court  must  believe,  that  having  paid  the  full  value  of  the  estate,  he 
was  ignorant,  at  the  time  he  purchased,  of  another's  equitable  title.  A 
purchaser  for  valuable  consideration  without  notice  is  therefore  the  only 
assign  against  whom  privity  annexed  to  the  person  cannot  at  the  present 
day  be  charged. 

6.  The  cestui  que  trust  has  no  remedy  but  hy  suhpoena  in  Chancery : 
and  by  chancery  must  be  understood,  not  exclusively  the  court  of  the 
lord  chancellor,  but  any  court  invested  with  an  equitable  jurisdiction, 
as  opposed  to  common  law  courts,(p)  and  spiritual  courts,(5')  neither  of 

(w)  See  Viscount  Downe  v.  Morris,  3  Hare,  394;  Evans  v.  Brown,  5  Beav.  114. 

(o)  Finch's  case,  4  Inst.  85,  1st  resolution;  and  see  Gilbert  on  Uses,  edited  by 
Sir  E.  Sugden,  p.  429,  note  6. 

{p)  Sturt  V.  Mellish,  2  Atk.  612,  per  Lord  Hardwicke;  Allen  v.  Imlett,  F.  L. 
Holt's  Rep.  641 ;  Holland's  case,  Styl.  41,  per  Rolle,  J. ;  Queen  v.  Trustees  of  Orton 
Vicarage,  14  Q.  B.  Re.  139  ;  Vanderstegen  v.  Witham,  6  M.  &  W.  457;  Bond  v. 
Nurse,  10  Q.  B.  Re.  244.  lu  The  Queen  v.  Abrahams,  4  Q.  B.  Re.  157,  the  court 
professed  to  proceed  upon  the  legal  right,  so  that  the  principle  was  not  disturbed, 
though  there  may  be  a  question  how  far  the  facts  justified  the  assumption  upon 
which  the  court  acted.  In  Roper  t.  Holland,  3  Ad.  &  Ell.  99,  a  cestui  que  trust 
recovered  upon  an  action  of  debt  for  money  had  and  received  on_  proof  of  the 
admission  by  the  trustee  that  he  had  a  balance  in  hand  for  the  plaintiff.  Sloper 
V.  Cottrell,  2  Jur.  N.  S.  1046. 

{q)  Miller's  case,  1  Freem.  283  ;  King  v.  Jenkins,  3  Dowl.  &  Ryl.  41 ;  Farrington 
v.  Knightly,  1  P.  W.  549,  per  Lord  Parker;  Edwards  v.  Graves,  Hob.  265  ;  Witter 
V,  Witter,  3  P.  W.  102,  per  Lord  King. 


92        LE  WIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

which  have  any  *cognizance  in  matters  of  trust.  A  common-law 
L  "^  -1  court  could  never  indeed,  from  the  defective  nature  of  its  proceed- 
ings, have  specifically  enforced  a  trust;  but  at  one  time  it  affected  to 
punish  a  trustee  in  damages  for  breach  of  the  implied  contract  :(r)  an 
exercise  of  authority,  however,  clearly  extra-provincial,  and  long  since 
abandoned. (s)  Should  a  spiritual  court  attempt  to  meddle  with  a  trust, 
the  Court  of  Queen's  Bench  might  be  moved  to  issue  a  prohibition. ((!) 


[*21]  *CH  AFTER    11. 

CLASSIFICATION    OF   TRUSTS. 

The  first  and  natural  division  of  trusts  is  into  simple  and  special. 

The  simple  trust  is  where  property  is  vested  in  one  person  upon  trust  for 
another,  and  the  nature  of  the  trust,  not  being  qualified  by  the  settlor, 
is  left  to  the  construction  of  the  law.  In  this  case  the  cestui  que  trust 
has  jus  habendi,  or  the  right  to  be  put  in  actual  possession  of  the  pro- 
perty, and  jus  disponendi,  or  the  right  to  call  upon  the  trustee  to  execute 
conveyances  of  the  legal  estate  as  the  cestui  que  trust  directs. 

The  sp>ecial  trust  is  where  the  machinery  of  a  trustee  is  introduced  for 
the  execution  of  some  purpose  particularly  pointed  out,  and  the  trustee 
is  not,  as  before,  a  mere  passive  depositary  of  the  estate,  but  is  called 
upon  to  exert  himself  actively  in  the  execution  of  the  settlor's  intention  ; 
as  where  a  conveyance  is  to  trustees  upon  trust  to  sell  for  payment  of 
debts. 

Special  trusts  have  again  been  subdivided  into  ministerial  (or  instru- 
mented) and  discretionary.  The  former,  such  as  demand  no  further 
exercise  of  reason  or  understanding  than  every  intelligent  agent  must 
necessarily  employ;  the  latter,  such  as  cannot  be  duly  administered  with- 
out the  application  of  a  certain  degree  of  prudence  and  judgment. 

A  trust  to  convey  an  estate  must  be  regarded  as  ministerial ;  for,  pro- 
vided the  cestui  que  trust  be  put  in  possession  of  the  estate,  it  is  perfectly 
immaterial  to  him  by  whom  the  conveyance  is  executed. 

Mr.  Fearne  was  of  opinion,  that  even  a  trust  for  sale  should  be  con- 
sidered as  ministerial ;  "  for  the  price,"  he  said,  "  is  not  arbitrary,  or  at 
the  trustee's  discretion,  but  to  be  the  best  that  can  be  gotten  for  the 
r*22  "1  ®^*^*^'  which  is  a  fact  to  be  ascertained  *independently  of  any 
L  J  discretion  in  the  trustee."(a)  But  there  is  much  room  for  judg- 
ment in  the  manner  of  proceeding  to  a  sale,  and  the  precautions  that  are 
taken  will  have  a  material  influence  upon  the  price. 

(r)  Megod's  case,  Godb.  64;  Jevon  v.  Bush,  1  Vern.  344,  per  Lord  Jeffries; 
bmith  V.  Jameson,  5  T.  R.  603,  per  Buller,  J. ;  and  see  1  Eq.  Ca.  Ab.  384,  D.  (a). 

(«)  Barnardiston  v.  Soame,  7  State  Trials,  443,  Harg.  ed.,  per  Chief  Justice 
^orth  ;  hturt  v.  Mellish,  2  Atk.  612,  per  Lord  Hardwicke  ;  Holland's  case.  StyL  41, 
per  Rolle,  J. ;  Allen  v.  Imlett,  F.  L.  Holt's  Rep.  14. 

T  r\,^^D  *  ,''•  ®™'^^'  ^  P-  ^-  '^J  Edwards  v.  Freeman,  2  P.  W.  441,  per  Sir  J. 
Jekyll ;  Barker  v.  May,  4  M.  &  R.  386. 
(«)  Fearne's  P.  W.  313. 


CLASSIFICATION    OF    TRUSTS.  93 

A  fund  in  trustees  upon  trust  to  distribute  among  such  charitable 
objects  as  the  trustees  shall  think  &t,(h)  or  an  advowson  conveyed  to 
them  upon  trust  to  elect  and  present  a  proper  preacher,(cy)  is  clearly  a 
discretionary  trust ;  for  the  selection  of  the  most  deserving  objects  in  the 
first  instance,  and  the  choice  of  the  best  candidate  in  the  second,  is  a 
matter  calling  for  serious  deliberation,  and  not  to  be  determined  upon 
without  due  regard  to  the  merits  of  the  candidates,  and  all  the  particular 
circumstances  of  the  case. 

A  trust  "to  distribute  at  the  discretion  of  the  trustees"  is  frequently 
designated  in  the  books  as  a  mixture  of  trust  and 2yoicer,{d'^  that  is,  a  trust 
of  which  the  outline  only  was  sketched  by  the  settlor,  while  the  details 
were  to  be  filled  up  by  the  good  sense  of  the  trustees.  The  exercise  of 
such  a  power  is  imijerative,  while  the  mode  of  its  execution  is  matter  of 
judgment  and  discretionary. 

A  mixture  of  trust  arid  jioieer  is  not  to  be  confounded  with  a  common 
trust  to  which  a  power  is  annexed ;  for,  in  the  latter  case,  the  trust  itself 
is  complete,  and  the  power,  being  but  an  accessory,  may  be  exercised  or 
not,  as  the  trustee  may  deem  it  expedient ;  as  where  lands  are  limited  to 
trustees  with  a  power  of  varying  the  securities :  for  in  such  a  case  the 
power  forms  no  integral  part  of  the  trust,  but  is  merely  collateral  and 
subsidiary,  and  the  execution  of  it,  in  the  absence  of  fraud,  cannot  be 
compelled  by  application  to  the  court. 

Again,  trusts  may  be  divided,  with  reference  to  the  object  in  view, 
into  lawful  and  unlawful.  The  former,  such  as  are  directed  to  some 
honest  purpose,  as  a  trust  to  pay  debts,  &c.,  which  are  called  by  Lord 
Bacon  Intents  or  Confidences,  and  will  be  administered  by  the  court. 
The  latter  are  trusts  ^created  for  the  attainment  of  some  end  ^  ^,-,.3  -, 
contravening  the  policy  of  the  law,  and  therefore  not  to  be  sane-  L  "'  J 
tioned  in  a  forum  professing  not  only  justice  but  equity,  as  a  trust  to 
defraud  creditors  or  to  defeat  a  statute.  Such  are  designated  by  Lord 
Bacon  as  Frauds,  Covins,  or  Collusions.(e\ 

Another  divisions  of  trusts  is  into  ji^Mic  and  private.  By  public 
must  be  understood  such  as  are  constituted  for  the  benefit  either  of  the 
public  at  large  or  of  some  considerable  portion  of  it  answering  a  pai'ticu- 
lar  description.  To  this  class  belong  all  trusts  for  charitahle  purposes, 
and  indeed  public  trusts  and  charitable  trusts  may  be  considered  as 
synonymous  expressions. (/)  In  private  trusts  the  beneficial  interest  is 
vested  absolutely  in  one  or  more  individuals  vsho  are,  or  within  a  cer- 
tain time  may  be  definitely  ascertained,  and  to  whom,  therefore,  collec- 
tively, unless  under  some  legal  disability,  it  is  competent  to  control, 
modify,  or  determine  the  trust;  the  duration  of  trusts  of  the  latter  kind 
cannot  be  extended  by  the  will  of  the  settlor  beyond  the  limits  of  legal 

(6)  Attorney-General  v.  Gleg,  1  Atk.  356;  Hibbard  v.  Lambe,  Amb.  309;  Cole 
V.  Wade,  16  Ves.  27;  Gower  v.  Mainwaring,  2  Ves.  7. 

(c)  Attorney-General  v.  Scott,  1  Ves.  413 ;  Potter  v.  Chapman,  Amb.  98. 

\d)  Cole  v.  Wade,  16  Ves.  43  ;  Gower  v.  Mainwaring,  2  Ves.  89. 

(e)  Bac.  on  Uses,  9. 

(/)  See  Attorney-General  v.  Aspinall,  2  M.  &  Cr.  622  ;  Attorney-General  v. 
Heelis,  2  S.  &  S.  76 ;  Attorney-General  v.  Corporation  of  Slire%y3bury,  6  Beav. 
220. 

January,  1858. — 7 


94        LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

limitations,  viz.,  a  life  or  lives  in  being  with  an  ingraftment  of  twenty- 
one  years.  But  tte  objects  of  a  public  trust  are  an  uncertain  and  fluc- 
tuating body,  and  the  trust  itself  is  of  a  permanent  and  lasting  character, 
and  is\ot  confined  within  the  limits  prescribed  to  a  settlement  upon  a 
private  trust.  (^) 


[*24] 


*CHAPTER    III. 


OF  THE  PARTIES  TO  THE  CREATIOX  OF  A  TRUST. 

Now  that  we  have  defined  and  distributed  trusts,  we  shall  next  enter 
upon  the  creation  of  them  ;  first,  by  the  act  of  a  party,  and  secondly, 
by  operation  of  law.  Upon  the  subject  of  the  former  class,  we  propose 
to  treat,  First,  Of  the  necessary  parties  to  the  creation  of  a  trust; 
Secondly,  What  property  may  be  made  the  subject  of  a  trust;  Thirdly, 
With  what  formalities  a  trust  may  be  created  ;  Fourthly,  What  may  be 
the  object  or  scope  of  a  trust;  and  Fifthly,  In  what  language  a  trust 
may  be  declared.  In  this  chapter,  we  shall  consider  the  necessary  par- 
ties to  a  trust. 

SECTION  I. 

OF   THE   SETTLOR. 

The  creation  of  a  trust  implies  the  presence  of  three  persons,  or  at 
leastof  three  characters,  namely, — l,a  settlor;  2,  a  trustee;  and  8,  a  cestui 
qxie  trust. 

As  the  creation  of  a  trust  is  a  modification  of  property  in  a  particular 
form,  it  may  be  laid  down  as  a  general  rule  that  whoever  is  competent  to 
deal  with  the  legal  estate,  may  vest  it  in  a  trustee  for  the  purpose  of  exe- 
cuting the  settlor's  intention. 

The  sovereign,  as  to  his  private  property,  may,  by  letters  patent,  grant 
it  to  one  person  upon  trust  for  another. (a)  But  the  trust  must  appear 
upon  the  face  of  the  letters  patent ;  for  if  the  grant  be  expressed  to  be 
made  to  one  person,  a  trust  in  favour  of  another  cannot  be  proved  by 
r*9f;  n  i'f'^''-'^  ill  favour  of  *another,  for  this  would  contradict  the  nature 
L  "^  J  of  the  instrument  which  purports  to  be  an  act  of  bounty  to  the 
grantee. (6)  However,  if  the  grant  be  to  A.  and  his  heirs  with  the  limita- 
tion of  a  beneficial  interest  to  A.  for  life  only,  a  trust  of  the  remainder 
will  not  pass  to  the  grantee,  but  will  result  to  the  crown,  for  the  pre- 
sumption of  bounty  as  to  the  whole  is  rebutted  by  the  declared  intention 
as  to  the  part.(c) 

All  prizes  taken  in  war  vest  in  the  sovereign,  and  may  by  the  royal 
warrant  be  granted  to  trustees  upon  trust  to  distribute  in  a  prescribed 
form  amongst  the  captors ;  but  an  instrument  of  this  kind  is  held  not  to 

(g)  Christ's  Hospital  v.  Grainger,  1  Mac.  &  Gord.  460. 

(a)  Bac.  on  Uses,  66.  (b)  Fordyce  v.  Willis,  3  B.  C.  C.  511. 

(c)  Bac.  on  Uses,  66. 


r  ARTIES  TO  THE  CREATION  OF  A  TRUST.      95 

vest  an  interest  in  tlie  cesfuis  que  trust  whicli  they  can  enforce  in  equity, 
but  to  resemble  a  power  of  attorney  for  reducing  the  prizes  into  posses- 
sion, or  a  creditor's  deed  to  which  the  creditors  are  not  parties,  and  may 
at  any  time  be  revoked  or  varied  at  the  pleasure  of  the  sovereign  before 
the  general  distribution. (cZ) 

The  crown  may  by  will  bequeath  its  private  personal  property  to  one 
person  in  trust  for  another,  but  the  will  must  be  in  writing  and  under 
the  sign  manual, (e)  though  the  Ecclesiastical  court  has  no  jurisdiction 
to  admit  it  to  probate. (/) 

As  to  the  power  of  Corporate  Bodies  to  create  a  trust,  it  was  compe- 
tent to  them,  before  the  late  Municipal  Corporations  Act,((7)  (subject  as 
to  ecclesiastical  corporations  to  the  restraining  statutes  of  Elizabeth,)  to 
alienate  their  property,  and  as  a  consequence  to  vest  it  in  a  trustee. (A) 
But  now  civil  corporations  are  themselves  trustees  of  their  property,  for 
the  public  purposes  prescribed  by  the  Municipal  Corporations  Act,  and 
are  debarred  from  alienating  their  real(;')or  personal  estate(A;)  without  the 
consent  of  the  Lords  of  the  Treasury. 

A  Feme  Covert  may  create  a  trust  of  real  estate,  but  it  must  be  with 
the  consent  of  her  husband,  and  there  must  be  all  the  attendant  formali- 
ties required  by  the  Fines  and  Recoveries  *Act.  It  is  some-  j-  ^,->p  -. 
what  singular  that  by  our  law  a  married  woman  is  under  a  total  L  "  J 
disability  as  to  her  choses  en  action.  The  husband,  however,  may  create 
a  trust  of  them  sub  modo  :  that  is,  if  they  be  reduced  into  possession 
during  the  coverture,  the  settlement  will  be  unimpeachable,  but  if  they 
remain  choses  en  action  at  the  death  of  the  husband,  the  wife  will  be 
entitled  to  them  by  survivorship.  And  the  husband  may,  subject  to 
the  wife's  equity  to  a  settlement,^?)  create  a  trust  of  the  wife's  equitable 
chattel  real,(wi)  unless  the  chattel  be  of  such  a  nature  that  it  cannot  pos- 
sibly fall  into  possession  during  the  coverture. (») 

As  regards  property  settled  to  the  separate  use  of  a  feme  covert,  with- 
out a  clause  against  anticipation,  she  is  to  all  intents  and  purposes  con- 
sidered a  feme  sole,  as  if  real  estate  be  conveyed  to  a  trustee  and  his 
heirs,  or  if  personal  estate  be  vested  in  a  trustee  and  his  executors 
upon  trust  for  the  feme  covert,  for  her  sole  and  separate  use,  and 
to  be  at  her  sole  disposal  as  to  the  fee  simple  in  the  one  case  and  the 
absolute  interest  in  the  other,  she  has  the  entire  control  and  may  exer- 
cise her  ownership  or  implied  power  of  appointment  by  creating  a  trust, 
extending  even  beyond  the  coverture.  If  the  feme  covert  be  tenant  for 
life  only  to  her  separate  use  without  any  clause  against  anticipation,  she 
has  full  power  to  make  a  settlement  of  her  life  estate.  Where  the  power 
of  anticipation  is  restrained  the  feme  covert  of  course  can  make  no  dis- 
position of  the  property,  except  as  to  the  annual  produce  which  has 
actually  become  due. 

{d)  Alexander  v.  Duke  of  Wellington,  2  R.  &  M.  35. 

(e)  39  &  40  G.  3,  c.  88,  s.  10.  (/)  Williams  on  Executors,  13,  5th  ed. 

(g)  5  &  6  W.  4,  c.  76.  (A)  Colchester  v.  Lowten,  1  V.  &  B.  226. 

(i)  5  &  6  W.  4,  c.  76,  s.  94. 

\k)  Attorney-General  v.  Aspinall,  2  M.  &  Cr.  613  ;  Attorney-General  v.  Wilson, 
Cr.  &  Ph.  1.  [l)  Hanson  v.  Keating,  4  Hare,  1. 

{m)  Donne  v.  Hart,  2  R.  &  My.  360.  (w)  Duberly  v.  Day,  16  Beav.  33. 


96        LEWIX  ox  THE  LAW  OF  TRUSTS,  ETC. 

If  an  Infant  before  the  Fines  and  Recoveries  Act  had  levied  a  fine  or 
suffered  a  recovery,  he  might  also  have  declared  the  uses,(o)  and  unless 
the  fine  or  recovery  had  been  reversed  by  him  during  his  nonage  he  had 
been  bound  by  the  declaration, (p)  but  deeds  have  now  been  substituted 
for  fines  and  recoveries,  and  every  deed  of  an  infant,  whether  under  the 
act  or  independent  of  it,  either  is  void  or  may  be  avoided.  An  infant 
at  the  present  day  might  make  a  feoffment  and  at  the  same  time  declare 
a  use  upon  it,  and  both  feoffment  and  use  *would  be  voidable 
[  '^-'  ]  only  and  not  void,(2)  and  by  analogy  it  might  be  held  that  the 
infant  can  also  engraft  a  trust  upon  the  legal  estate,  but  a  court  of  equity 
would  never  allow  any  equitable  interest  to  be  enforced  against  the 
infant  to  his  prejudice,  but  would  give  him  the  same  power  of  avoidance 
over  the  equitable  as  he  had  over  the  legal  estate,  and  if  the  infant  has 
died  without  having  avoided  the  trust,  it  is  conceived  that  a  court  will 
still  investigate  the  transaction,  and  see  that  no  unfair  advantage  had 
been  taken, (r) 

An  infant  may  by  the  custom  of  Kent  for  valuable  consideration  cer- 
tainly, and  according  to  the  better  opinion,  without  value,(s)  make  a 
feoffment  at  the  age  of  fifteen,  and  upon  such  feoffment  he  may  declare 
uses. (A  But  a  court  of  equity  would  no  doubt  confine  such  a  custom 
within  its  narrowest  bounds,  or  as  trusts  have  sprung  into  being  since 
the  statute  of  Hen.  8,  might  hold  the  custom  to  be  void  as  of  recent 
growth  in  respect  of  the  equitable  interest,  and  at  all  events  would  not 
allow  the  custom  to  be  made  an  instrument  of  fraud. 

Before  the  late  Wills  Act^u)  an  infant  of  the  age  of  fourteen  years 
might  have  bequeathed  his  personal  estate  and  have  created  a  trust  of  it, 
but  now,  as  regards  personal  as  well  as  real  estate,  every  testator  must 
be  of  the  age  of  twenty-one  years. 

Lunatics  or  Idiots  might,  before  the  Fines  and  Becoveries  Act,  have 
levied  a  fine  or  suffered  a  recovery,  and  the  uses  declared  would  have 
been  valid  until  the  fine  or  recovery  had  been  reversed.  But  now  fines 
and  recoveries  have  been  abolished  and  the  deed  of  a  lunatic  or  idiot  is 
ipso  facto  void.(v)  The  feoffment  of  a  lunatic  or  idiot  is  voidable  by 
the  heir  only.^i*)  However,  should  a  lunatic  or  idiot  engraft  a  declara- 
tion of  trust  upon  a  feoffment  a  court  of  equity  would  have  jurisdiction 
to  set  it  aside  -jix^  though  generally  it  declines  to  interfere  even  in  this 
case  as  against  a  purchaser  for  valuable  consideration  without  notice  of 
the  lunacy  or  idiocy,  (y) 

r*281       *^°  Alien  may  acquire  real  e&id^iQhy purchase,  though  he 
L        -J  cannot  take  it  by  descent  or  operation  of  law,  and  if  he  purchase 

(o)  Gilb.  on  Uses,  41,  245,  250.  [p)  lb.  246. 

\q)  Bac.  on  Uses,  67  ;  Bac.  Ab.  Uses,  E.       (r)  See  Cr.  Dig.  vol.  iv.  p.  130. 

(s)  Robinson  on  Gavelkind.  u)  Gilb.  on  Uses,  250. 

(«)  1  Vict.  c.  26. 

{v)  But  as  to  the  contracts  of  a  lunatic,  see  Molton  v.  Camroux,  2  Exch.  Rep. 
487,  4  Exch.  Rep.  1?.  '  ^ 

(w)  Co.  Lit.  247,  b. 

(X)  See  Cruise,  vol.  iv.  p.  130,  vol.  v.  p.  253  ;  Niel  v.  Morley,  9  Ves.  478. 
284  "^^  ^''  ^^"'"?^0"'  2  ^^^^^-  ^  t'O^*^'-  486;  Greenslade  v.  Dare,  20  Beav. 


PARTIES  TO  THE  CREATION  OF  A  TRUST.      97 

it  he  may  hold  it  until  office  found,  but  cannot  give  an  alienee  a  better 
title  than  he  had  himself.  An  alien,  therefore,  can  only  create  a  trust 
of  real  estate  until  the  crown  steps  in.  As  to  personal  estate  an  alien 
enemy  cannot  even  hold  it,  but  an  sXiqu  friend  maybe  the  lawful  owner 
of  chattels  personal,  and  may  exercise  the  ordinary  rights  of  proprietor- 
ship over  them,  and  consequently  may  create  a  trust. 

With  regard  Traitors,  Felons,  and  Outlaics,  a  distinction  must  be 
taken  between  real  and  personal  estate.  In  high  treason,  lands,  whether 
held  in  fee  simple,  or  fee  tail,(s)  or  for  life,  are  upon  attainder  forfeited 
absolutely  to  the  crown. (^s)  In  petty  treason  and  murder,(a)  lands  in 
fee  (subject  to  the  year,  day,  and  waste  of  the  sovereign,)  escheat  to  the 
lord  of  the  fee,  and  lands  in  tail  are  forfeitable  to  the  crown  for  the  life 
of  the  offender,  and  on  his  death  devolve  on  the  issue  in  tail.  Outlawry 
for  treason,  petty  treason,  or  felony,  is  equivalent  to  attainder,  and  the 
lands  of  the  outlaw  are  forfeited,  or  escheat,  exactly  in  the  same  manner 
as  if  a  judgment  had  been  pronounced. (Z^)  In  treason,  petty  treason, 
and  felony,  or  in  outlawry  for  those  crimes,  the  forfeiture  works  from 
the  time  of  the  offence,  and  therefore  from  that  date  no  trust  can  be 
created  as  to  lands  :  but  the  goods  and  chattels  of  traitors,  felons,  and 
outlaws,  are  forfeited  only  from  the  time  of  conviction,  or  declaration  of 
outlawry,  and  therefore  up  to  that  period  the  traitor,  felon,  or  outlaw, 
may  vest  his  goods  and  chattels  in  a  trustee  upon  trusts.  However,  the 
law  will  not  allow  this  power  of  disposition  to  be  exercised  collusivcly 
for  the  purpose  of  defeating  the  just  rights  of  the  crown  ;(l")  but  the 
traitor,  felon,  or  outlaw  may  sell  the  goods  for  valuable  consideration. ((/) 
And  so  he  may  assign  the  property  upon  trust  to  secure  the  hona  fide 
debt  of  a  creditor  ;(e)  but  the  existence  of  the  debt  must  be  actually 
^proved,  and  the  mere  recital  of  it  in  the  security  will  not  be  ^  ^^^^  -. 
sufficient. (/)  An  assignment  upon  a  meritorious  consideration,  L  ~"  J 
as  a  bargain  and  sale  to  a  trustee  for  the  purpose  of  making  provision 
for  a  son,  will  not  support  the  deed.(^)  "  Though  a  sale,"  said  Lord 
Holt,  "  hona  fide,  and  for  a  valuable  consideration,  had  been  good, 
because  the  party  had  a  property  in  the  goods  till  conviction,  and  ought 
to  be  reasonably  sustained  out  of  them,  yet  such  a  conveyance  as  this 
could  not  be  intended  to  any  other  purpose  than  to  prevent  a  forfeiture 
and  defraud  the  king ;"  and  added,  ''  that  there  was  a  fraud  at  common 
law  in  such  a  case."(/i) 

Outlawry  in  misdemeanors  and  civil  actions  is  a  contempt  of  court, 
and  works  a  forfeiture  of  the  profits  of  the  offender's  lands  for  his  life, 
and  of  his  goods  and  chattels,  whether  real  or  personal,  absolutely.  The 
person  so  outlawed,  therefore,  cannot  from  that  time  affect  the  pernancy 

(z)  26  Hen.  8,  c.  13.     See  2  Bac.  Ab.  576,  580. 

\zz)  Attainder  is  necessary  to  support  the  crown's  right,  even  to  the  year,  day, 
and  waste.     Rex  v.  Bridger,  1  M.  &  W.  145. 
la)  See  54  G.  3,  c.  145. 

(6)  See  Co.  Lit.  390,  b  ;  Holloway's  case,  3  Mod.  42  ;  King  v.  Ayloff,  3  Mod.  72. 
(c)  See  Anon.  2  Sim.  N.  S.  71.  {d)  Hawk.  Pleas  of  the  Cr.,  book  2,  c.  49. 

(e)  Perkins  v.  Bradley,  1  Ha.  219 ;  Whitaker  v.  Wisbey,  12  C.  B.  R.  44. 
(/)  Shaw  V.  Bran,  1  Stark.  320.  {g)  Jones  v.  Ashurst,  Skinn.  357. 

(A)  4  Black.  Comm,  387,  388. 


98 


LE^VIN    ON    THE    LAW    OF    TRUSTS,    ETC. 


of  the  profits  of  his  real  estate,  nor  make  any  settlement  of  his  personal 

estate. 

If  a  man  be  declared  a  hanhrupt,  all  the  real  and  personal  estate  to 
which  he  may  acquire  a  title  up  to  the  time  of  obtaining  his  certificate, 
becomes  vested  in  his  assignees ;(«)  but  the  surplus  after  payment  of  his 
debts  still  belongs  to  him,  and  of  this  interest  he  may  create  a  trust. 

In  the  case  of  an  insolvent,  all  the  real  and  personal  estate  which  may 
be  vested  in  or  may  accrue  to  him  up  to  the  date  of  the  final  discharge, 
is  transferred  by  the  act  to  his  assignees ;(/»:)  and  as  to  subsequently 
acquired  property,  the  assignees  may,  by  virtue  of  the  judgment  to  be 
entered  up  against  him,  at  any  time  divest  it  out  of  the  insolvent  by 
taking  out  execution,  but  they  must  first  obtain  the  order  of  the  court.(/) 
An  insolvent,  therefore,  can  make  no  settlement  of  property  which  he  has 
acquired  before  the  final  discharge,  and  the  claim  of  the  assignees,  should 
it  be  ever  advanced,  would  by  the  lien  of  the  judgment  over-ride  a  trust 
of  any  real  or  leasehold  estate  to  which  he  might  have  become  entitled 
even  subsequently  to  the  final  discharge. 

[  *30  ]  *SECTIOX  11. 

WHO  MAY  BE  A  TRUSTEE. 

The  Sovereign  may  sustain  the  character  of  a  trustee,  so  far  as  regards 
the  capacity  to  take  the  estate,  and  to  execute  the  trust ;  but  great  doubts 
have  been  entertained  whether  the  subject  can,  by  any  legal  process, 
enforce  the  performance  of  the  trust.  The  right  of  the  cestui  que  trust 
is  sufficiently  clear,  but  the  defect  lies  in  the  rcviecly.i^a\  The  Court  of 
Chancery  has  no  jurisdiction  over  the  king's  conscience,  for  that  it  is  a 
power  delegated  by  the  king  to  the  chancellor  to  exercise  the  king's  equi- 
table authority  betwixt  subject  and  subject. (i)  The  Court  of  Exchequer 
has,  in  its  character  of  a  court  of  revenue,  an  especial  superintendence 
over  the  royal  property ;  and  it  has  been  thought  that  through  that  chan- 
nel a  ccstad  que  trust  might  indirectly  obtain  the  relief  to  which,  on  the 
general  principles  of  equity,  he  is  confessedly  entitled.  Xo  such  juris- 
diction, however,  appears  to  have  been  known  when  Lord  Hale  was  chief 
baron. (c)  Lord  Hardwicke  once  observed  in  chancery,  "  I  will  not 
decree  a  trust  against  the  crown  in  this  court,  but  it  is  a  notion  esta- 
blished in  courts  of  revenue  by  modern  decisions  that  the  king  may  be  a 
royal  trustee  ;"(fZ)  but  the  doctrine  was  still  unsettled  in  the  time  of  Lord 
Northington.(e)     And  in  a  recent  case,(/)  it  was  decided  that  though 

(i)  12  &  13  Vict.  c.  106,  ss.  141,  142. 

{k)  1  &  2  Vict.  c.  110,  s.  37.  [I)  i  &  2  Vict.  c.  110,  s.  87. 

(a)  Pawlett  v.  Attorney-General,  Hard.  467,  469;  Burgess  v.  Wheate,  1  Ed.  255; 
Kildare  v.  Eustace,  1  Vern.  439. 

(b)  Said  by  counsel  in  Pawlett  v.  Attorney-General,  Hard.  468. 

(c)  See  Pawlett  v.  Attorney-General,  Hard.   467,  469;   and  see  Wike's  case, 
Lan.  54.  ;  i  > 

{d)  Penn  v.  Lord  Baltimore,  1  Ves.  453;  and  see  Reeve  v.  Attorney-General,  2 
Atk.  224  ;  Hovenden  v.  Lord  Anneslev,  2  Sch.  &  Lef.  617. 
(e)  See  Burgess  v.  Wheate,  1  Ed.  2*55. 
(/)  Hodge  V.  Attornev-GeneraL  3  Y.  &  C.  342. 


PARTIES  TO  THE  CREATION  OF  A  TRUST      99 

the  Court  of  Exchequer  could  decree  the  -possession  of  thq  p'-operty 
according  to  the  equitable  title,  it  had  no  jurrsmction  to  direct  the  crown 
to  convey  the  legal  estate.  The  subject  may  undoubtedly  appeal  to  "the 
sovereign  by  presenting  a  petition  *of  right, ((/)  and  it  cannot  be  j-  ,^0-1' -1 
supposed  that  the  fountain  of  justice  would  not  do  justipe.(A)        L    .  ■    J 

A  coi'poration  could  not  have  been  seised  to  a  use,  fori  {£s  was  gravety 
observed,  it  had  no  soul,  and  how  then  could  any  confident's  be  repoecd 
in  it  ?  But  the  technical  rules  upon  which  this  doctrine  proeoedod,  hav*^ 
long  since  ceased  to  operate  in  respect  of  trusts ;  and  at  the  pr'^sent  day 
every  body  corporate  is  compellable  in  equity  to  carry  the  intention  into 
execution. (A  Indeed,  every  corporation  since  the  Municipal  Corpora- 
tions Act(^)  has  become  a  trustee,  for  a  corporation  has  now  no  longer 
the  power  to  alien  and  dispose  of  its  property,  except  with  the  sanction 
of  the  lords  of  the  treasury,  but  is  bound  to  apply  it  to  certain  public 
purposes  pointed  out  by  the  act;  and  if  there  be  any  misapplication  of 
that  fund,  there  lies  a  remedy  in  chancery  by  information. ^  But 
although  the  court  has  ample  jurisdiction  to  oblige  a  corporation  to  the 
observance  of  good  faith,  and  the  property  already  vested  in  a  corporate 
body  will  be  administered  upon  the  trust  attached  to  it,  yet  by  the  statute 
of  mortmain  no  real  estate  can  now  be  conveyed  to  a  corporation  upon  anj'^ 
trust  without  the  license  of  the  crown.  However,  there  is  no  objection 
to  an  assignment  or  bequest  of  pure  personal  estate  to  a  corporation  upon 
a  trust. 

The  Bank  of  England  cannot  directly  or  indirectly  be  made  a  trustee 
of  stock.  The  corporation  manages  the  accounts  of  the  public  funds,  and 
is  charged  with  the  care  of  paying  the  dividends ;  but  refuses,  and  can- 
not be  compelled  by  law,  to  *uotice  any  rights  but  those  of  the  j-  ^q^, ., 
legal  proprietors  in  whose  names  the  stock  is  standing.  L      ■'J 

The  company  will  not  enter  notice  of  instruments  inter  vivos  upon  their 
books  ;  and  though  they  are  obliged  by  certain  Acts  of  Parliament  to 
enter  the  wills,  or  at  least  extracts  from  the  wills,  of  deceased  proprietors 
of  stock,  the  object  of  the  legislature,  as  the  court  has  now  clearly  deter- 
mined, was  not  to  make  the  company  responsible  for  the  due  administra- 
tion of  the  fund  according  to  the  equitable  right,  but  to  enable  them  to 
ascertain  who  under  the  will  were  the  persons  legally  entitled. (m)(l) 

{g)  As  to  the  transfer  of  the  equity  jurisdiction  of  the  Court  of  Exchequer  to  the 
Court  of  Chancery,  see  5  Vict.  c.  5,  s.  1 ;  and  Attorney-General  v.  Corporation  of 
London,  8  Beav.  270,  1  H.  of  L.  Ca.  440. 

(A)  Scounden  v.  Hawley,  Comb.  172,  per  Dolben,  J. ;  Reeve  v.  Attorney-General, 
cited  Penn  v.  Lord  Baltimore,  1  Ves.  446. 

{i)  See  Attorney-General  v.  Lauderfield,  9  Mod.  286  ;  Dummer  y.  Corporation  of 
Chippenham,  14  Ves.  252  ;  Green  v.  Rutherforth,  1  Ves.  468  ;  Attorney-General  v. 
Whorwood,  1  Ves.  536  ;  Attorney-General  v.  Mayor  of  Stafford,  Barn,  33 ;  Attorney- 
General  V.  Foundling  Hospital,  2  Ves.  jun.  46  ;  Attorney-General  v.  Earl  of  Claren- 
don, 17  Ves.  499;  Attorney-General  v.  Caius  College,  2  Keen,  165. 

{k)  5  &  6  W.  4,  c.  76. 

{I)  Attorney-General  v.  Aspinall,  1  Keen,  513,  2  M.  &  0.  613  ;  Attorney-General 
v.  Borough  of  Poole,  4  M.  &  C.  17;  Parr  v.  Attorney-General,  8  CI.  &  Finn.  409 : 
Attorney-General  v.  Corporation  of  Lichfield,  11  Beav.  120. 

{m)  Hartga  v.  Bank  of  England,  3  Ves.  55;  Bank  of  England  v.  Parsons,  5  Ves. 

(1)  By  an  act  of  William  &  Mary  (4  W.  &  M.  c.  3,  s.  10,)  the  will  was  directed 


100  LEl^flX    ON    TIl^    LAW    01    TKU5T<,    ETC. 

Were  the  /-onstruetion  to' be  dthenvise,  the  Bank  of  England  Tvould  be 
trustee  for  half  the  familirt  in  the  kingdom. 

^s-tne  bank  is  not  bound  to  recognize  even  the  contents  of  the  will 
beyord  the  lecjal  devise,  a  fortiori  it  will  not  be  converted  into  a  trustee 
by  fi'otiee  of  anv  -^c'reement,  by  which  the  interests  taken  under  the  will 
hav\3  subsequefrtiy  shifted  from  one  person  to  another;  as,  if  stock  be 

"-.  devised'  to  A.  for  life,  *with  remainder  to  B.,  and  A.  assign  to 
^'Tf^  ]  JB.j'o?  B.  release  to  A.,  although  in  equity  the  whole  beneficial 
665';  Efank  of  England  v.  Lnnn,  15  Tes.  5S3,  per  Lord  Eldon  ;  Humberstone  v. 
eha.-e,  2  Y.  &  C.  209^ 

to  be  entered  in  the  Eeceipt  Office  of  the  Exchequer,  where  the  annuities  were 
then  payable :  but  br  a  subsequent  act  in  the  same  reign  {5  V> .  &  M  c.  20,  s.  2U,) 
the  Bank  was  incorporated;  and  by  statutes  of  George  the  First  and  George  the 
Second  (1  Geo.  1.  st.  ii.  c.  19.  s.  12 ;  30  Geo.  2,  c.  19,  s.  49.)  it  was  enacted,  that 
"  a  person  possessed  of  stock  might  devise  the  same  by  will  in  writing,  attested  by 
two  credible  witnesses ;  but  that  such  devisee  should  receive  no  payment  thereon, 
till  so  much  of  the  will  as  related  to  the  said  stock  should  be  entered  in  the  office 
of  the  Bank ;  and  in  default  of  such  devise,  the  stock  should  go  to  the  executors  or 
administrators." 

Upon  the  effect  of  these  provisions  it  has  been  held — 1st,  That  although  stock 
be  specifically  devised,  and  the  wiU  be  duly  attested  by  two  witnesses,  yet,  until 
the  executor  assent  to  the  specific  bequest,  the  legal  property  of  the  stock  remains 
vested  in  the  executor;  and  if  it  be  necessary  to  make  use  of  it  as  assets,  he  may 
bring  an  action  at  law  against  the  bank  for  refusing  to  transfer  in  obedience  to  his 
directions.  Franklin  v.  The  Bank  of  England,  9  B.  &  C.  156.  And  of  course  the 
bank  cannot  obtain  an  injunction  in  equity  against  the  legal  proceedings;  Bank 
of  England  v.  Moffat,  3  B.  C.  C.  260  ;  Bank  of  England  r.  Lunn,  15  Ves.  569;  Bank 
of  En°gland  v.  Parsons,  5  Yes.  665;  for,  as  Lord  Eldon  observed,  if  the  executor 
cannot  maintain  an  action  at  law,  the  bank  has  no  need  of  assistance  from  a  court 
of  equity;  and  if  he  can  maintain  his  action,  then  he  must  be  authorized  to  do  so 
by  the  statute,  and  equity  cannot  interfere.  Bank  of  England  v.  Lunn,  15  Yes.  583. 
Lord  Thurlow  once  expressed  an  opinion  that  the  devise  of  stock  was  in  the  nature 
of  a  parliamentary  appointment,  and  did  not  require  the  executor's  assent ;  Pear- 
son T.  Bank  of  England.  2  Cox,  178,  179  :  but  he  afterwards  changed  his  opinion, 
and  conceived  the  executors  assent  to  be  necessary,  as  in  a  specific  devise  of  lease- 
holds. Bank  of  England  v.  MofiFat,  3  B.  C.  C.  263* ;  compare  Bank  of  England  v. 
Parsons,  5  Yes.  668.  Lord  Eldon  said,  that,  as  by  a  clause  in  the  act,  stock  could 
not  be  attached,  sequestered,  or  taken  in  execution,  during  the  lifetime  of  the 
holder,  he  had  always  doubted  whether  the  legislature  did  not  intend  to  give  it  a 
peculiar  value  by  enabling  the  party  to  devise  it,  like  land,  independently  of  the 
executor:  but  his  lordship  said,  the  construction  adopted  in  practice  was,  that, 
though  specifically  bequeathed,  it  must  have  the  executor's  assent,  and  was  liable, 
as  assets,  to  the  payment  of  debts:  Bank  of  England  v.  Lunn,  15  Yes.  517.  518; 
and  so  the  law  is  now  clearly  settled.  2ndly,  There  is  no  doubt,  that,  after  the 
executors  assent,  the  specific  legatee,  if  the  will  was  attested  by  two  witnesses, 
becomes  the  perfect  legal  proprietor,  and  may  bring  an  action  at  law  against  the 
bank  for  refusing  to  transfer  into  his  name.  See  Bank  of  England  v.  Lunn,  15 
Yes.  518,  and  following  pages.  3rdly,  If  the  stock  be  specifically  bequeathed,  but 
the  will  be  not  attested  by  two  witnesses,  then  the  legal  property  of  the  funds  vests 
absolutely  in  the  executor  :  but,  as  the  act  does  not  express  how  the  executor  shall 
apply  it,  the  court  considers  him  to  hold  it  upon  trust,  subject  to  the  payment  of 
debts,  for  the  person  to  whom  it  was  informally  devised.  The  legatee  could  of 
course  have  no  legal  interest  in  the  stock  until  the  executor  had  made  an  actual 
transfer  to  him.  See  Bank  of  England  v .  Lunn.  15  Yes.  578  ;  Rider  v.  Kidder,  10 
Yes.  369  ;  Pvipley  v.  Waterworth,  7  Yes.  440,  452. 

Xow  by  the  late  Will  Act  (7  Gul.  4,  «  1  Y.  c.  26,)  the  gift  of  stock  by  will  has 
been  put  on  the  same  footing  with  the  testamentary  disposition  of  all  other  pro- 
perty. 

By  the  8  &  9  Yict.  cap.  97.  the  provisions  of  the  former  acts  relating  to  registra- 
tion of  testamentary  instruments  in  the  office  of  the  bank,  were  repealed. 


PARTIES    TO    THE    CREATION    OF    A    T  nU  S  T.  101 

interest  has  thus  become  vested  in  A.  or  B.,  the  bank  will  not  transfer 
the  stock  during  the  life  of  A.  to  the  one  or  the  other;  but,  on  A.'s 
decease,  will  transfer  to  B.  or  his  personal  representative.  However,  a 
suit  may  be  instituted  for  the  purpose  of  compelling  the  bank  to  give 
effect  to  the  equitable  title ;  but,  the  refusal  of  the  company  to  act  with- 
out the  order  of  the  court,  will  be  considered  as  justifiable  and  proper, 
and  therefore  the  bank  in  such  suits  will  be  allowed  their  costs.(/*) 

*A/eme  covert  may  be  a  trustee,  but  it  would  not  be  advisable  ^  ^^^  -, 
to  select  a,  feme  covert.{o) 

There  appears,  indeed,  to  be  no  want  of  discretion  for  the  due  execu- 
tion of  the  trust,  for  a  women  has  no  less  judgment  after  marriage  than 
before  ■,{p)  nay,  as  was  quaintly  added  by  Sir  John  Trevor,  she  rather 
improves  it  by  her  husband's  teaching.(j)  The  reasons  upon  which  her 
disabilities  are  founded,  are  her  own  interest  or  her  husband's,  or  both;(r) 
and,  where  these  are  not  concerned,  she  possesses  as  much  legal  capacity 
as  if  she  were  perfectly  sui  Juris  ;  thus,  she  may  execute  powers  simply 
collateral,(s)  and  (somewhat  contrary  to  principle)  even  powers  appendant, 
or  in  gross. (^)  At  law,  the  trustee  is  considered  as  the  sole  and  absolute 
proprietor,  and  therefore  he  can  have  no  power  that  does  not  flow  from 
the  legal  ownership  ;  but  in  equity,  the  absolute  interest  is  vested  in  the 
cestui  que  trvM,  and,  as  the  trustee  is  regarded  in  the  light  of  a  mere 
instrument,  any  authority  communicated  to  a  trustee  must  have  the 
character  of  a  power  simply  collateral. (w)  It  follows,  that  if  a  discretion- 
ary trust  be  committed  to  a  feme  covert,  there  is  nothing  to  prevent  her 
due  administration  of  it,  so  far  as  relates  to  her  legal  judgment  and 
capacity.  At  the  same  time  it  must  be  admitted  that  a  woman's  will  is 
not  her  own,  and  that  if  a  trust  were  confided  to  difemc  covert,  the  hus- 
band would,  in  fact,  exercise  no  little  influence.  Indeed,  as  the  husband 
would  be  liable  for  her  breaches  of  trust,  he  must,  for  his  own  protection, 
look  to  the  manner  in  which  she  discharges  the  ofiice.(r) 

But  further,  the  appointment  of  a  feme  covert  is  attended  *with  r  ^35  -i 
inconvenience   from   her  inability  to  join  in  the  requisite  assu-  L 
ranees.     At  common  law,  if  lands  be  vested  in  a  feme  covert  upon  con- 
dition to  enfeoff  another,  she  may  execute  the  feoffment  by  her  own  act, 
without  the  intervention   of  her  husband  ;(2c)  and  hence  it  has  been 

(n)  Pearson  v.  Bank  of  England,  2  B.  C.  C.  529  ;  Austin  v.  Bank  of  England  8 
Yes.  522:  Marrratt  t.  The  Bank,  and  Aynsworth  v.  The  Bank,  cited  lb.  524, 
note  (b).     As  to  making  the  bank  parties,  see  39  &  40  G.  3,  c.  36. 

(0)  Lake  v.  De  Lambert,  4  Yes.  595.  per  Lord  Loughborough. 

[p)  Compton  T.  Collinson.  2  B.  C.  C.  38T,  per  Buller,  J. ;  Hearie  v  Greenbank, 
1  Y^=.  305.  per  Lord  Hardwicke:  Bell  r.  Hyde,  Pr.  Ch.  330,  per  fcir  John  Trevor; 
and  see  marginal  note  to  Moore  v.  Hussey,  Hob.  95  ;  and  see  Needier  v.  Bishop  of 
Winchester.  Hob.  225. 

Iq)  Bell  V.  Hvde.  Pr.  Ch.  330. 

(>)  Comptonv.  Collinson,  2  B.  C.  C.  387,  per  Buller,  J. 

(s)  Co  Lit.  112,  a;  ib.  187.  b  ;  Lord  Antrim  t.  Duke  of  Buckingham,  2  Freem. 
168,  per  Lord  Keeper  Bridgnian :  Blithe's  case.  ib.  91,  vid.  2nd  resolution;  Godol- 
phin  V.  Godolphin.  1  Yes  23.  per  Lord  Hardwicke. 

{t)  See  Sugden  on  Powers,  c.  3,  sect.  1.  (")  See  infra. 

[v)  See  Sniith  v.  Smith,  21  Beav.  385. 

(if)  Daniel  v.  Ubley,  Sir  W.  Jones,  137. 


102  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

aroued,  tliat,  ia  the  case  of  a  trust,  she  may,  equally  without  her  hus- 
dand's  concurrence,  convey  the  estate  to  the  parties  equitably  entitled. (x) 
But  between  the  two  cases  there  is  this  clear  and  obvious  distinction,  that 
a  condition  is  part  and  parcel  of  the  common  law,  while  a  trust  is  only 
recognised  in  the /o?'Hm  of  a  court  of  equity;  except,  therefore,  the  trust 
be  so  worded  as  to  bear  the  construction  of  a  legal  condition,  it  seems 
impossible  to  contend  that  an  instrument  otherwise  inoperative  should, 
from  the  mere  circumstance  of  the  trust,  which  a  court  of  law  cannot  no- 
tice, acquire  a  validity,  (y)  Mr.  Fonblanque  suggests  the  additional  reason, 
that  if  a  married  woman  were  allowed  to  convey  a  trust  estate  without 
her  husband's  concurrence,  she  might  convey  it  before  the  several  objects 
of  the  trust  were  satisfied,  for  which  he  might,  jointly  with  her,  be  respon- 
sible to  the  cestui  que  trust. {z^ 

It  is  almost  equally  undesirable  to'  appoint  a  feme  who  is  single  a 
trustee,  for  should  she  marry,  the  character  of  the  trust  is  altered,  and 
the  husband,  as  liable  for  her  breaches  of  trust,  must  have  a  control  over 
her  acts.  On  these  grounds  the  court  has  refused  to  appoint  a  feme 
sole  a  trustee,  as,  in  the  event  of  her  marriage,  the  inconveniences  above 
suggested  would  arise. (a) 

An  infant  labours  under  still  greater  disability  than  a /ewe  covert ;  for, 
first,  as  regards  judgment  and  discretion,  a  fane  is  admitted  to  have 
capacity,  though  she  cannot  in  all  cases  freely  exercise  it;  but  an  infant 
is  said  altogether  to  ivant  capacity. (i)  An  infant  cannot  be  steward  of 
r  >^op  -X  the  court  of  a  *manor,f  c)  or  attorney  for  a  person  in  a  suit,(<;?)  or 
L  -J  guardian  to  a  minor,(e)  or  be  a  bailiff"  or  receiver ;(/)  but  can 
only  discharge  such  acts  as  are  merely  ministerial,  as  to  be  an  attorney  to 
deliver  seisin, (</)  or  as  lord  of  a  manor  to  give  eff'ect  to  the  custom. (A) 
So,  as  executor,  he  might,  until  a  recent  act,  have  been  the  channel  or 
conduit  pipe  through  which  the  assets  found  their  way  to  the  hands  of 
the  creditors  in  a  due  course  of  administration  ;(<)  but  had  he  acted  other- 
wise than  ministerially,  as  by  signing  an  acquittance  without  receipt  of 
the  money,  such  an  exercise  of  discretion  had  been  actually  void. (A:)  It 
follows  that  an  infant  cannot  exercise  even  a  power  simply  collateral  (of 

(x)  Daniel  v.  Ubley,  Sir  W.  Jones,  138,  per  Whitlock,  and  Dodridge,  J. 

(?/)  See  Mr.  Hargrave's  Observations.  Co.  Lit.  112,  a,  note  (6),  and  Mr.  Fon- 
blanque's  Treat,  on  Equitj-,  toL  i.  p.  92.' 

(z)  Treat,  on  Equity,  vol.  i.  p.  92. 

(a)  Brook  v.  Brook,  1  Beav.  531. 

[h)  Hearle  v.  Greenbank,  3  Atk.  712,  and  1  Ves.  305,  per  Lord  Hardwicke: 
Grange  v.  Tiving,  0.  Bridg.  108,  per  Sir  0.  Bridgman  ;  Compton  v.  Collinsoa,  2  B. 
C.  C.  387,  per  Buller,  J. ;  and  see  Sockett  v.  Wraj,  4  B.  C.  C.  486. 
_  (c)  Co.  Lit.  3,  b;  and  see  Mr.  Hargrave's  note  (4,)  ib.  But  acts  done  by  an 
infant  in  the  character  of  steward  cannot  be  avoided  by  reason  of  his  disability. 
Eddleston  v.  Collins,  3  De  Gex,  Mac.  &  Gord.  1. 

{d)  Co.  Lit.  128,  a;  Br.  Ab.  "Covert,  and  Infant,"  pL  55,  and  see  Hearle  v. 
Greenbank,  3  Atk.  710. 

(e)  Co.  Lit.  88,  b.  (/)  Co.  Lit.  172,  a. 

(g)  Co.  Lit.  52,  a;  Br.  Ab.  "Covert,  and  Infant,"  pi.  55. 

(A)   1  Watk.  on  Copyh.  24;  and  see  Halliburton  v.  Leslie,  2  Hoo-.  252. 

(i)  Toller  on  Executors,  31. 
^  {k)  Russell's  case,  5  Re.  27,  a;  Co.  Lit.   172,  a:  ib.  264,  b;  1  Roll.  Ab.  730, 


PARTIES    TO    THE    CREATION    OF    A    TRUST.  103 

which  kiud  are  powers  communicated  to  trustees)  if  requiring  the  appli- 
cation of  prudence  and  discretion. (^) 

With  respect  to  an  infant's  ability  to  pass  the  estate,  it  seems  to  be 
generally  agreed  that,  at  common  law,  a  feoffment  of  lands,(m)  or  an 
actual  delivery  of  goods  and  chattels,(ft)  is  an  act  of  so  great  solemnity,  that 
it  serves  to  carry  the  present  possession,  and  is  voidable  only,  and  not 
void. 

Where  the  property  is  of  an  incorporeal  nature,  as  the  delivery  of  the 
thing  itself  is  impossible,  the  common  law  has  substituted  the  kindred 
precaution  of  delivery  of  the  deed.  The  effect  of  a  deed  delivered  by  an 
infant  has  been  much  disputed;  by  some  it  has  been  held  to  be  absolutely 
null  and  void,(o)  *by  others  to  be  voidable  only,(p)  and  by  others  ^  ^^„  -. 
again  to  be  void  or  voidable,  as  the  validity  of  the  execution  is  L  J 
taken  to  be  for  the  infant's  benefit  or  not.(g')  Another  opinion  still 
(which  is  that  of  Perkins,(r)  and  was  adopted  in  the  case  of  Zouch  v. 
Parsons,(s)  and  may  therefore  be  regarded  as  the  doctrine  of  the  present 
day)  is,  that  an  infant's  deed,  where  the  delivery  of  it  answers  to  the 
livery  of  seisin,  and  operates  as  the  conveyance  of  an  interest,  is  merely 
voidable ;  but  where  it  does  not  take  effect  as  an  assurance  by  delivery 
of  the  hand,  as  in  a  power  of  attorney,(<)  it  is  then  actually  void.  Lord 
Mansfield,  however,  subjoined  the  qualification,  that  if  a  case  should  arise 
where  it  would  be  more  beneficial  to  the  infant  that  the  deed  should  be 
considered  as  void ;  as,  if  he  might  incur  a  forfeiture,  or  be  subject  to 
damage,  or  a  breach  of  trust  in  respect  of  a  third  person, («)  unless  it  was 
deemed  void,  the  reason  of  an  infant's  privileges  would  in  such  case  war- 
rant an  exception  from  the  rule.(i') 

Where  the  instrument  carries  no  solemnity  icitli  it,  the  validity  of  the 
act  must  then  depend  on  the  question  how  far  the  assurance  promotes 
the  interest  of  the  infant.  Thus  in  Humphreston's  case,(ir)  where  a 
minor  had  made  a  lease  for  years  by  parol,  it  was  held  by  Justice  Gawdy, 

(l)  See  Grange  v.  Tiving,  0.  Bridg.  109  ;  Hearle  v.  Greenbank,  3  Atk.  695 ;  S. 
C.  1  Ves.  298. 

(m)  Thompson  v.  Leach,  3  Mod.  311,  per  Cur. ;  Br.  Ab.  "  Covert,  and  Inf."  pi. 
1 ;  and  see  Co.  Lit.  42,  b.  51,  b  ;  Wittingham's  case,  8  Rep.  42,  b  ;  Br.  Ab.  "  Covert, 
and  Inf."  pL  40. 

(w)  Perk.  14;  Br.  Ab.  "  Covert,  and  Inf."  pi.  1. 

(o)  Br.  Ab.  "  Covert,  and  Inf."  pi.  1  and  10 ;  Lloyde  v.  Gregory,  Cr.  Car.  502, 
per  Cur. ;  Thompson  v.  Leach,  3  Mod.  310,  per  Cur.  See  observations  on  the 
two  last  cases  in  Zouch  v.  Parsons,  3  Burr.  1806  and  1807  ;  and  see  Humphreston's 
case,  2  Leon.  216. 

(p)  Norton  v.  Turvil,  2  P.  W.  145,  per  Sir  J.  Jekyll. 

(q)  See  Zouch  v.  Parsons,  3  Burr.  1804  ;  and  see  Humphreston's  case,  2  Leon. 
216  ;  Lloyde  v.  Gregory,  Cr.  Car.  502;  Nightingale  v.  Earl  Ferrers,  3  P.  W.  210. 

(r)  Sects.  12  and  154;  and  see  Br.  Ab.  "Dum  fuit  infra  <T?tatem,"  pi.  1;  id. 
"Covert,  and  Inf."  pL  12;  Stone  v.  Wythipole,  Cr.  El.  126;  Marlow  v.  Pitfield, 
1  P.  W.  559. 

(s)  3  Burr.  1807;  confirmed  by  the  recent  case  of  Allen  v.  Allen,  1  Conn.  & 
Laws,  427,  2  Drur.  k  War.  307. 

(t)  See  Br.  Ab.  "  Covert,  and  Inf."  pi.  1 ;  Whittingham's  case,  8  Rep.  45,  a. 

(m)  Quaere  if  a  court  of  law  could  notice  a  breach  of  trust.  See  Warwick  v. 
Richardson,  10  Mees.  &  Wels.  295. 

(v)  Zouch  V.  Parsons,  3  Burr.  1807. 

(w)  2  Leon.  216;  and  see  Lloyde  V.  Gregory,  Cr.  Car.  502,  Co.  Lit.  51,  b;  Grange 
V.  Tivingr,  Sir  0.  Bridg.  117. 


104  LEWIN    OX    THE    LAW    OF    TRUSTS,    ETC. 

that,  the  lease  having  been  made  to  try  the  title  of  the  land,  which  was 
a  good  consideration^  and  to  the  profit  of  tJie  infant,  and  for  his  advance- 
ment, the  lease  was  not  void  :  but  Justice  Southcote  and  Chief  Justice 
Wray  conceived  that  the  lease  being  without  rent,  profit,  or  other  recom- 
pease,  it  was  void  ah  initio  for  icant  of  a  consideration  ;  *so 
L  J  that  all  the  judges  agreed  in  making  the  infant's  benefit  the 
criterion,  though  they  difi'ered  in  the  application  of  it  to  the  particular 
circumstances  of  the  case. 

Supposing  the  infant's  assurance  not  to  have  been  a  nullity  ah  initio, 
it  is  still  in  his  power  to  defeat  the  act  by  a  subsequent  avoidance. 

It  is  laid  down,  indeed,  by  Lord  Mansfield,  in  Zouch  v.  Parsons,(j:)  that 
if  an  infant  do  a  right  act,  which  he  ought  to  do,  which  he  is  compellahlc 
to  do,  it  shall  bind  him ;  as  if  he  make  equal  partition,  if  he  pay  rent,  if 
he  admit  a  copyholder  upon  a  surrender.  And  upon  this  principle  the 
court  decided,  in  that  case,  that  a  mortgagee's  infant  heir,  who  had  con- 
veyed the  trust  estate  by  the  mortgagor's  direction,  could  not  subse- 
quently avoid  it.  But  this  determination  seems  open  to  objection  ;  for, 
if  the  court  proceeded  on  the  ground  that  the  conveyance  was  a  right 
and  proper  act,  on  principles  of  equity,  such  a  doctrine  would  manifestly 
confound  the  legal  and  equitable  j urisdictions  ;  for,  independently  of  the 
trust,  the  avoidance  had  been  efi"ectual,  and  if,  on  the  equity  of  the  case, 
it  was  declared  to  be  a  nullity,  the  decree  of  the  court  amounted  to  a 
precedent  for  granting  equitable  relief.  But  if  the  court  considered  the 
infant  as  compellable  to  convey  under  the  statute  of  7  Amu.  c.  19,  this 
appears  not  exactly  the  truth ;  for  the  act  is  not  imperative,  but  discre- 
tionary ;  it  declares  that  it  shall  be  lauful  for  the  infant  to  convey ;  and 
the  infant's  assurance  is  to  be  made  upon  the  direction  of  the  Court  of 
Chancery  or  Exchequer ;  so  that  a  court  of  common  law,  in  deciding 
the  validity  of  the  infant's  conveyance,  assumed  to  itself  that  discretion 
which  the  legislature  had  expressly  delegated  to  one  of  the  courts  of 
equity.  Lord  Mansfield  in  conclusion  observed,  that  by  this  decision 
circuity  of  suit  was  avoided ;  for,  if  a  court  of  law  should  declare  the 
conveyance  inoperative,  a  court  of  equity  would  not  hesitate  to  decree  a 
new  conveyance.  It  was  under  cover  of  this  plea  that  the  legal  and 
equitable  jurisdictions  were  in  the  last  century  almost  confounded  ;  but 
the  tendency  of  the  courts  at  the  present  day  is  to  keep  the  jurisdictions 
distinct. 

r  *39  1  *Another  objection  to  an  infant  trustee  is.  that  he  cannot  be 
L  -1  decreed  to  make  satisfaction  on  the  ground  of  a  breach  of 
trust. (^)  However,  an  infant  has  no  privilege  to  cheat  men,(.:)  and 
therefore  he  will  not  be  protected,  if  he  be  old  and  cunning  enough  to 
contrive  a  fraud. (a) 

(x)  3  Burr.  1801. 

{y)  See  Whitmore  v.  Weld,  1  Tern.  328  ;  Russell's  case,  5  Re.  27,  a:  Hindmarsh 
v.  Southgate,  3  Russ.  324. 

(z)  Evroy  v.  Nicholas,  2  Eq.  Ca.  Ab.  A%Q,per  Lord  Kincr. 

(a)  See  Cory  v.  Gertcken,  2  Mad.  40  ;  Evroy  y.  Nicholas,  2  Eq.  Ca.  Ab.  488  : 
Earl  of  Buckingham  v.  Drury,  2  Ed.  Tl,  V2  ;  Clare  v.  Earl  of  Bedford,  13  Vin. 
536;  \\atts  v.  Cresswell,  9  Vin.  415;  Beckett  v.  Cordley,  1  B.  C.  C.  358  ;  Savage 


PARTIES    TO    TUE    CREATIOX    OF    A   TRUST.  105 

From  the  great  inconveniences  attending  the  appointment  of  an  infant 
as  trustee,  there  arises  a  strong  presumption,  wherever  property  is  given 
to  an  infant,  that  he  is  intended  to  take  it  beneficially.  (5) 

An  alien  may  effectually  be  appointed  a  trustee  in  respect  of  chattels 
personal,  but  not  in  respect  of  freeholds  or  chattels  real.  The  policy  of 
the  law  will  not  allow  an  alien  to  sue  or  be  sued  touching  lands  in  any 
court,  of  law  or  equity  ;(r)  and  on  inquisition  found,  the  legal  estate  of 
the  property  would  vest  by  forfeiture  in  the  crown. 

In  a  case  where  a  testator  devised  real  estate  to  his  wife  and  an  alien 
upon  trust  to  sell,  and  they  sold  accordingly,  and  executed  a  conveyance ; 
a  question  afterwards  arose  whether  the  purchaser  had  a  good  title,  and 
with  a  view  of  curing  the  defect  an  Act  of  Naturalization  was  obtained  : 
but  it  was  held,  that  the  common  form  of  the  Act  of  Naturalization  did 
not  confirm  the  purchaser's  title  retrospectively,  but  that  the  objection 
remained.  The  parties  had  endeavoured  to  introduce  into  the  bill  spe- 
cial words  to  meet  the  case,  but  a  departure  from  the  usual  course  was 
found  impracticable. (f?) 

*If  the  alien  be  doniciled  abroad,  it  is  an  objection  to  his  fit-  j-  ^.^  -, 
ness  for  the  office  of  trustee,  that  he  is  not  amenable  to  the  juris-  L  -• 
diction  of  the  court.  But  where  the  personal  property  of  a  lady  was 
settled  on  her  marriage  with  2t,  foreigner ,  who  at  the  time  of  the  mar- 
riage was  resident  in  England  but  domiciled  in  America,  and  the  settle- 
ment specially  authorized  an  investment  on  American  securities ;  it  was 
held  that  the  subsequent  appointment  of  three  Americans  to  be  trustees, 
in  contemplation  of  a  residence  in  America  and  of  an  investment  upon 
American  securities,  was  justifiable. (e) 

Bankrupts  and  insolvents  may  of  course  be  appointed  trustees,  should 
any  one  be  disposed  to  commit  the  administration  of  his  property  to  those 
who  have  not  been  equal  to  the  prudent  management  of  their  own.  The 
past  or  any  subsequent  act  of  bankruptcy  or  insolvency  will  have  no 
operation  upon  the  trust  estate. 

Similarly,  cestuis  qui  trust  are  not,  as  such,  incapacitated  from  being 
trustees ;  though,  as  a  general  rule,  they  are  not  altogether  fit  persons 
for  the  office,  in  consequence  of  the  probability  of  a  conflict  between 
their  interest  and  that  of  some  co-cestui  que  trust,  in  which  event  they 
could  hardly  be  expected  to  hold  an  even  hand.  So,  although  the  pre- 
sent Master  of  the  Rolls  considers  it  objectionable  to  appoint  any  relative 
a  trustee,  from  the  frequency  of  breaches  of  trust  committed  by  trustees 
at  the  instance  of  cestui  que  trust  nearly  connected  with  them,(/)  there 
is  no  positive  legal  objection  to  appointing  a  relative.     Indeed  it  is  not 

V.  Foster,  9  Mod.  37 ;  Overton  v.  Banister,  3  Hare,  503  ;  Stikeman  v.  Dawson, 
1  De  Gex  &  Sm.  503 ;  Wright  v.  Snowe,  2  De  Gex  &  Sm.  321. 

(6)  Lamplugli  v.  Lamplugh,  1  P.  W.  112;  Blinkhorne  v.  Feast,  2  Ves.  30; 
Mumma  v.  Mumma,  2  Vern.  19  ;  Taylor  v.  Taylor,  1  Atk.  386  ;  Smith  v.  King,  16 
East,  283 ;  and  see  King  v.  Denison,  2  V.  &  B.  278. 

(c)  Gilb.  on  Uses,  43  ;  and  see  Fish  v.  Klein,  2  Mer.  431.  See  late  act  7  &  8 
Vict.  c.  66.  The  exceptions  in  the  5th  section  enabling  subjects  of  a  friendly 
state  to  hold  lands  for  21  years  for  purposes  of  residence,  &c.,  cannot,  of  course, 
apply  to  the  case  of  a  trustee. 

(d)  Fish  V.  Klein,  2  Mer.  431.  (e)  Meinertzhagen  v.  Davis,  1  Coll.  335. 
(/)  Wilding  V.  Bolder,  21  Beav.  222. 


106  LE  WIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

always  easy  to  find  a  trustee  who  is  neitlier  a  relative  nor  a  cestui  que 
trust,  and  this  the  court  itself  has  experienced ;  for  notwithstanding  its 
repugnance,  it  has  been  obliged,  occasionally,  to  appoint  not  merely  a 
relative,  but  even  a  cestui  que  trust  to  be  a  trustee. (^) 

We  may  here  remark,  that  care  should  be  taken  to  provide  not  only 
for  the  fitness  of  the  trustee,  but  also  for  an  adequate  number  of  trustees. 
A  single  trustee,  whether  originally  appointed  such  or  become  so  by  sur- 
vivorship, has  the  absolute  and  unlimited  control  over  the  property  ;  and 
should  he  *become  involved  in  difficulties,  he  is  under  a  strong 
L  J  temptation  to  sustain  his  credit  by  resorting  to  a  fund  of  which 
he  can  with  certainty  possess  himself,  and  without  the  fear  of  immediate 
detection.  The  fallacious  hope  of  replacing  the  money  before  the  day 
of  payment  arrives,  has  lulled  the  conscience  of  many,  not  the  worst  of 
mankind,  when  sufi'ering  under  the  pressure  of  poverty.  There  can  be 
no  objection  to  the  appointment  of  a  single  trustee,  where,  as  in  uses  to 
bar  dower,  the  trust  reposed  in  him  is  merely  a  nominal  confidence ;  but 
where  the  administration  of  the  trust  involves  the  receipt  and  custody  of 
money,  the  safeguard  of  at  least  two  trustees  ought  never  to  be  dispensed 
with.  And  on  the  death  of  one  of  the  original  trustees,  no  time  should 
be  lost  in  restoring  the  fund  to  its  proper  security  by  the  substitution  of 
a  new  trustee,  a  precaution,  it  is  feared,  but  too  frequently  neglected 
from  motives  of  delicacy,  as  the  surviving  trustee  is  sensitive,  and  con- 
ceives his  honesty  is  called  into  question  :  and  the  cestuis  que  trust,  often 
too  ignorant  of  the  world  to  see  the  necessity  of  taking  precautions 
against  fraud,  are  apt  to  suspect  their  legal  adviser  of  a  wish  to  create 
business  at  the  expense  of  the  estate.  To  guard  against  the  constant 
recurrence  of  appointment  of  new  trustees,  it  is  common,  at  least  where 
the  property  is  considerable,  to  appoint,  four  trustees  originally,  for  then, 
on  the  decease  of  the  first  or  even  a  second  trustee,  an  immediate  substi- 
tution is  not  very  material,  but  the  safe  rule  is,  to  appoint  three,  and 
keep  the  number  always  full. 

More  than  four  are  hardly  ever  appointed,  because  it  is  a  general 
rule  of  the  bank  not  to  allow  stock  to  be  transferred  into  the  names  of 
more  than  four  joint  proprietors.  But  in  special  cases,  so  many  as  five 
or  six  have  been  admitted. 


SECTION  III. 

WHO    MAY   BE   CESTUI   QUE    TRUST. 

It  may  be  laid  down  as  a  general  rule,  that  as  cequitas  sequitur  legem, 
those  who  are  capable  of  taking  the  legal  estate,  may,  through  the  chan- 
nel of  the  trust,  be  made  the  recipients  of  the  equitable. 
r*42"l  *'^  ^^"^*  ^^y  ^^  declared  in  favour  of  the  Sovereign.  While 
uses  were  in  their  fiduciary  state,  it  was  held  that  in  order  eflFec- 
tually  to  limit  a  use  to  the  crown,  the  title  must  have  been  matter  of 
record.      '<  It  behoveth,"  says  Lord  Bacon,  '^  that  both  the  declaration 

{g)  Ex  parte  Glutton,  17  Jurist,  988. 


PARTIES    TO    THE    CREATION    OF    A    TRUST.  107 

of  the  use  and  the  conveyance  itself  be  matter  of  record,  because  the 
king's  title  is  compounded  of  both ;  I  say  not  appearing  of  record,  but 
by  conveyance  of  record.  And,  therefore,  if  I  covenant  with  J.  S.  to 
levy  a  fine  to  him  to  the  king's  use,  which  I  do  accordingly,  and  the 
deed  of  covenant  be  not  enrolled,  and  the  deed  be  found  by  office,  the 
use  vesteth  not.  E  converso,  if  enrolled.  If  I  covenant  with  J.  S.  to 
enfeofi"  him  to  the  king's  use,  and  the  deed  be  enrolled  and  the  feoff- 
ment also,  and  it  be  found  by  ofiice,  the  use  vesteth  not.  But  if  I  levy 
a  fine,  or  sufifer  a  recovery  to  the  king's  use,  and  declare  the  use  by  deed 
of  covenant  enrolled,  though  the  king  be  not  a  party  yet  it  is  good 
enough. "(A)  However,  in  trusts  it  is  clear,  that  where  the  operation  of 
law,  as  in  the  case  of  hona  vacantia,  gives  a  right  to  the  crown,  that  of 
itself  is  sufficient  ;(Q  and  perhaps  it  may  be  laid  down  generally  that  the 
crown  may  now,  in  all  cases,  enforce  an  equitable  interest  in  the  same 
manner  as  a  private  person.  In  Burgess  v.  Wheate,(/i;)  Sir  Thomas  Clarke 
was  of  this  opinion,  and  apparently  his  colleagues.  Lord  Mansfield  and 
Lord  Northington,  concurred  in  the  same  view.  He  laid  down  that  it  was 
the  prerogative  of  the  crown  not  to  implead  with  the  subject  before  it 
took  possession  ;  but  that  if  the  crown  intended  to  take  possession  with- 
out suit,  it  was  necessary,  in  order  to  protect  the  subject  and  inform  him 
of  the  point  in  issue,  that  the  foundation  of  the  right  in  the  crown 
should  appear  upon  record  :  but  that  the  crown  might  waive  the  privilege 
of  taking  possession  before  suit,  and  might  seek  the  adjudication  of  the 
court  without  previotis  seizure  :  that  an  inquisition  did  not  give  a  title 
to  the  crown,  even  where  the  legal  estate  was  in  question,  and  indeed,  as 
to  the  equitable  interest,  was  nugatory  in  itself. (A 

*A  trust  of  lands  cannot  be  limited  to  a  corporation  without  a  r-^^  ao-\ 
license  from  the  crown ;  both  on  general  principles,  and  also  by  ■-  J 
analogy  to  the  statutory  enactment  as  to  uses.(??i) 

As  regards  an  alien,  a  trust  of  lands  may  he  declared  mh\&  favour,(«.) 
but  cannot  be  enforced  by  him  for  his  own  benefit  •,{o\  it  being  contrary 
to  law  that  an  alien  should  plead,  or  be  impleaded,  touching  lands  in  any 
court  in  the  kingdom  :(j>)  and  the  king,  on  inquest  found,  will  be  enti- 
tled to  the  trust  by  forfeiture,  for  the  mischief  is  the  same  as  if  the 
alien  had  purchased  the  lands  themselves. (j)  But  the  forfeiture  vests 
not  in  the  king  the  legal  estate, (?•)  but  merely  transfers  to  him  the  right 

(A)  Bcac.  on  Uses,  60  ;  and  see  Gilb.  on  Uses,  44,  204. 

[i)  Middleton  v.  Spicer,  1  B.  C.  C.  201  ;  Brummell  v.  Macpherson,  5  Russ.  263. 

{k)   1  Ed.  188. 

\l)  Burgess  v.  Wheate,  1  Ed.  187. 

(m)  See  Shep.  Touch.  509  ;  Sand,  on  Uses,  339,  note  E;  15  Ric.  II.  c.  5. 

[n)  Dumoncel  v.  Dumonccl,  13  Ir.  Eq.  Rep.  92  ;  and  see  Vin.  ab.  Alien,  A.  8  ; 
Godfrey  v.  Dixon,  Godb.  275.     See  Br.  Feff.  al.  Uses,  389,  a,  pi.  29. 

(o)  King  V.  Holland,  Al.  16,  per  Bacon,  J.;  S.  C.  Styl.  21,  per  Rolle,  J.  See 
Burney  v.  Macdonald,  15  Sim.  6.  But  of  course  the  special  exceptions  in  the  7  & 
8  Vict.  G.  66,  s.  5,  would  apply  to  the  case  of  an  equitable  interest. 

[p)  Gilb.  on  Uses,  43. 

(q)  Attorney-General  v.  Sands,  Hard.  495,  per  Lord  Hale  ;  Fourdrin  v.  Gowdey, 
3  M.  &  K.  383.     See  Burney  v.  Macdonald,  15  Sim.  6. 

(r)  King  v.  Holland,  Al.  14;  Sir  John  Back's  case,  cited  lb.  16;  Attorney- 
General  V.  Sands,  Hard.  495,  per  Lord  Hale. 


108       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

of  suing  a  subpoena  against  the  trustee  in  equity,  (s)  A  distinction  has 
been  taken,  that  although  where  a  trust  is  perfected  in  favour  of  an  alien 
the  crown  may  be  entitled,  yet  where  a  trust  in  favour  of  an  alien  is  not 
in  esse,  but  only  m  fieri  and  executory,  the  court  will  do  no  act  to  give 
it  to  an  alien,  who,  by  law,  cannot  hold. (if) 

In  a  recent  case(«)  it  was  decided,  that  where  a  testator  directs  an 
estate  to  be  sold,  and  the  proceeds  divided  amongst  certain  persons, 
some  of  whom  are  aliens ;  there,  as  according  to  the  intention  which  is 
supposed  to  be  executed  at  the  time  of  the  death,  the  interest  devised, 
is  money,  the  crown  is  not  entitled,  for  the  mere  purpose  of  working  a 
forfeiture,  to  exercise  an  election  by  retaining  the  property  as  land ;  and, 
therefore,  that  the  aliens  are  not  debarred  from  enjoying  their 
L  J  *leo^acies  in  the  pecuniary  character  which  the  testator  stamped 
upon  them. 

It  may  be  remarked,  that  in  certain  cases  persons  are  capable  of  ta- 
king an  equitable  interest,  to  whom  the  legal  estate  could  not  have  been 
similarly  limited.  Thus,  at  common  law,  no  property,  real  or  personal, 
can  be  so  limited  to  a  married  woman,  as  to  exclude  the  legal  rights  of 
the  husband  during  coverture ;  but,  by  way  of  trust,  the  benefical  inter- 
est can  be  placed  entirely  at  the  disposal  of  a  married  woman,  so  that 
she  shall  be  regarded  as  a  feme  sole,  and  the  husband  shall  not  partici- 
pate in  the  enjoyment.  And  this  may  be  effected  even  without  the 
interposition  of  a  special  trustee ;  the  only  distinction  being  that,  where 
no  trustee  is  interposed,  the  husband  will,  in  respect  of  his  legal  rights, 
be  held  by  a  court  of  equity  to  be  a  trustee  for  his  wife,(f)  and  would, 
it  is  conceived,  be  bound  to  deal  with  any  legal  interest  vested  in  him 
according  to  his  wife's  direction ;  while,  in  the  case  of  the  legal  interest 
being  vested  in  a  trustee,  the  husband's  concurrence  in  any  act  of  alien- 
ation or  other  dealing  of  his  wife  is  wholly  unnecessary. 

So  the  legal  estate  cannot  be  limited  to  the  objects  of  a  charity,  as  to 
the  poor  of  a  parish,  in  perpetual  succession  ;  but  in  a  court  of  equity, 
where  the  feudal  rules  do  not  apply,  the  intention  of  the  donor  will  be 
carried  into  effect,(?i")  provided  of  course  the  requisitions  of  the  9th  G. 
2,  c.  36,  be  complied  with. 

It  may  here  be  observ'ed,  that  the  act  just  referred  to  operates,  not 
by  producing  any  incapacity  to  take  as  cestui  que  trust,  but  by  forbid- 
ding the  alienation  of  land,  or  of  property  savouring  of  the  realty,  (ex- 
cept in  the  mode  prescribed  by  the  act,)  for  objects  falling  within  the 
legal  definition  of  charitable  purposes. 

{s)  King  V.  Holland,  Al.  16,  per  Rolle,  J.  ;  Roll.  Ab.  194,  pi.  8.  See  Burney  V. 
Macdonald,  15  Sim.  6;   Burgess  v.  Wheate,  1  Ed.  188. 

(t)  See  Burney  v.  Macdonald,  15  Sim.  14. 

(w)  Du  Hourmelin  v.  Sheldon,  1  Beav.  79,  4  Myl.  &  Cr.  525 ;  and  see  Master  v. 
De  Croismar,  11  Beav.  184. 

(v)  Newlands  v.  Paynter,  4  M.  &  Cr.  408  ;  and  compare  Baggett  v.  Meux,  1  Coll- 
yer,  188 ;  1  Phil.  627  ;  and  Waters  v.  Wood,  14  M.  &  W.  166. 

(w)  Gilb.  on  Uses,  204. 


WHAT    PROPERTY    MADE    SUBJECT    OF    A    TRUST.      IQO 

^CHAPTER    IV.  [=''-i5] 

"WHAT   PROPERTY   MAY   BE   MADE   THE    SUBJECT   OF   A   TRUST. 

As  a  general  rule,  all  property,  wlietlier  real  or  personal,  may  be  made 
the  subject  of  a  trust,  provided  tlie  policy  of  the  law,  or  any  statutory 
enactment,  do  not  prevent  the  legal  proprietor  from  parting  with  the 
beneficial  interest  in  favour  of  another  person. 

As  to  lands  regulated  by  a  local  custom,  as  copyholds,  trusts  may  also 
be  created;  thus,  A.,  tenant  of  a  manor,  may  surrender  to  the  use  of  B. 
and  his  heirs,  upon  trust  for  C.  and  his  heirs.  And  as  equity  follows 
the  law,  the  trust  in  C.  will  devolve  in  the  same  manner  as  the  legal 
estate.  It  will  descend  for  instance  not  to  the  heir-at-law,  but  the  custo- 
mary heir;(a;)  and  as  the  copyholder  might,  until  the  late  act,(7/)  have 
devised  the  legal  estate  in  the  copyhold  by  a  will,  neither  signed  nor 
attested,  ih.^  cestui  que  trust  might  in  like  manner  have  passed  the  equit- 
able interest  by  a  will  equally  informal. (.-.) 

The  same  principle  would  seem  to  require  that  where  the  legal  estate 
in  copyholds  was  not  devisable  at  all, (a)  the  cestui  que  trust  should  have 
no  power  of  intercepting  by  his  will  the  descent  of  the  equitable  interest 
upon  the  customary  heir.  The  courts,  however,  have  leaned  strongly  iu 
favour  of  a  power  of  testamentary  disposition,  notwithstanding  the  want 
of  a  custom  in  respect  of  the  legal  estate.  Thus  in  "Wilson  v.  Dent,(Z*j 
A.  surrendered  to  the  use  of  B.  in  fee  upon  trust  for  A.  for  his  life,  and 
after  his  death  upon  the  trusts  of  his  will.  The  ^custom  of  the  ^  ^ .  p  -. 
manor  did  not  recognize  any  mode  of  passing  the  estate  by  will,  L  -^ 
but  the  court  nevertheless  decided  that  the  will  operated  as  a  testifica- 
tion, for  whose  benefit  the  trustee  was  to  hold  the  estate,  and  that  the 
surrenderee  was  a  trustee  for  the  devisees. 

So  in  Lewis  v.  LanCj^c)  a  copyhold  was  granted  by  the  lord  to  A.,  a 
purchaser  for  valuable  consideration,  for  the  successive  lives  of  himself 
and  B.  A.  in  his  lifetime  could  have  passed  the  estate  by  surrender 
for  both  lives,  but  lands  held  of  the  manor  were  not  devisable ;  and  on 
the  death  of  A.,  without  having  surrendered,  B.,  by  the  custom,  could 
claim  admittance  for  his  life.  As  A.  had  paid  the  purchase-money,  B. 
was  held  to  be  a  trustee  for  him ;  and  as  A.  could  not  have  devised  the 
legal  estate,  the  question  was  whether  his  will  served  to  pass  the  result- 
ing trust.  Lord  Cottenham,  then  M.  R.,  observed:  "If  there  be  an 
equitable  interest,  how  can  it  be  that  the  owner  has  not  the  power  of 
devising  it?  Can  it  be  said  that  if  A.  purchase  in  the  name  of  B.  and 
pay  the  purchase-money,  the  property  shall  belong  to  B.  and  not  to  A.  ? 

(x)  Trash  v.  Wood,  4  Myl.  &  Cr.  324.  {y)   1  W.  4,  &  1  Vict.  c.  26. 

(z)  Appleyard  v.  Wood,  Select  Ch.  Cas.  42 ;  Wagstaff  v.  Wagstaff,  2  P.  Will. 
258  ;  Tufifuell  v.  Page,  2  Atk.  37. 

(a)  As  to  the  power  of  devising  the  legal  estate,  even  before  the  late  Wills  Act. 
see  Pike  v.  White,  3  B.  C.  C.  286 ;  Doe  v.  Thompson,  7  Q.  B.  Rep.  887. 

(b)  3  Sim.  385.  (c)   2  Mjl.  &  Keen,  449. 

January,  1858. — 8 


110       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

I  cannot  agree  that  this  is  a  question  of  custom  at  all,  or  that,  if  it  were, 
it  would  be  reasonable." 

If  the  custom  of  the  manor  permit  an  entail  of  the  legal  estate,  an 
entail  may  in  like  manner  be  created  in  the  equitable  ;((^)  but  if  there 
be  no  such  custom  as  to  the  legal  estate,  there  can  be  no  entail  of  the 
equitable.  "The  trust  estate  of  a  copyhold,"  said  Lord  Hardwicke, 
'<  can  in  no  case  be  capable  of  an  entail  when  the  legal  estate  is  not,  it 
being  necessary  that  there  should  be  the  same  rule  concerning  property 
in  law  and  in  equity."(e)  Where,  therefore,  the  equitable  interest  in 
lands  held  of  a  manor  not  permitting  an  entail  is  limited  to  A.,  and  the 
heirs  of  his  body,  the  estate  is  not  construed  as  an  entail  but  as  a  fee 
conditional,  that  is,  on  issue  born  the  condition  is  fulfilled,  and  A.  may 
alienate  in  fee. 

How  far  equitable  interests  may  be  engrafted  on  foreign  property 
requires  consideration.  As  regards  j^er.sona?  estate  *there  is  no 
L  J  difficulty,  for  it  follows  the  person,  and  if  the  settlor  himself  be 
domiciled  within  the  jurisdiction  of  the  court,  all  his  personal  estate, 
whether  in  the  East  or  West  Indies,  or  elsewhere,  has  no  locality  abroad, 
but  is  deemed  to  be  at  home,  and  governed  by  the  law  of  this  country. 
A  trust,  therefore,  may  freely  be  created  of  such  interests,  and  would  be 
enforced  in  equity.  In  certain  cases,  however,  there  might  be  practical 
obstructions  in  the  way  of  executing  the  trust,  from  the  circumstance  of 
the  property  lying  in  fact  beyond  the  reach  of  the  court. 

As  to  lands  lying  in  a  foreign  country,  the  court  will  unquestionably 
enforce  natural  equities,  and  compel  the  specific  performance  of  contracts, 
provided  the  parties  be  within  the  jurisdiction,  and  there  be  no  insuper- 
able obstacle  to  the  execution  of  the  decree. 

Thus  in  a  West  India  estate,  a  tenant  in  common  and  consignee  had 
expended  various  sums  in  the  management  of  the  property ;  an  inquiry 
was  directed  whether  there  was,  by  the  local  law  or  usage,  a  lien  by  a 
consignee  or  tenant  in  common  for  proper  advances  to  the  estate,  and 
the  master  not  finding  any  such  lien  for  want  of  evidence  before  him. 
Lord  Eldon  said  "  that  the  estate  could  not  be  carried  on  without  a  con- 
signee, and  that  as  the  person  intrusted  had  made  no  complaint,  he 
should  allow  the  lien  upon  the  application  of  general  principles  to  estates 
in  the  West  Indies. (/) 

In  the  leading  case  of  Penn  v.  Lord  Baltimore, ((/)  the  court  enforced 
certain  articles  between  the  parties,  for  ascertaining  the  boundaries  of 
two  provinces  in  America ;  and  Lord  Hardwicke  observed,  that  as  to 
the  courts  not  enforcing  the  execution  of  this  judgment,  if  that  were  so, 
it  would  be  in  vain  to  make  a  decree ;  but  though  the  court  could  not 
enforce  the  decree  in  rem,  it  could  in  personam  ;  and  though  the  decree 
could  not  be  enforced  by  putting  the  party  in  possession,  yet  it  could  be 
by  process  of  contempt,  which  had  been  originally  the  only  jurisdiction 

{d)  Pullen  V.  Middleton,  9  Mod.  Rep.  484  ;  1  Preston,  Conv.  152. 

(c)  The  opinion  of  Watkins,  Treat,  on  Cop.  p.  153,  and  following  pages,  that 
there  may  be  an  entail  of  copyholds  without  a  special  custom,  cannot  be  main- 
tained. ' 

(/)  Scott  V.  Nesbit,  14  Ves.  438.  (^)  1  Ves.  444. 


WHAT  PRorEr.TY  made  subject  of  a  trust.  Ill 

of  the  court,  and  known  long  before  the  writ  of  assistance  to  the  sheriff; 
and  his  lordship  cited  several  precedents  of  a  similar  decree. (A) 

*In  other  cases  the  court  has  directed  an  account  of  the  rents  ^  ^ ,  ^ .. 
and  properties  of  lands  abroad,(i)  and  has  ordered  an  absolute  L  J 
sale,(7i)  and  foreclosure  of  a  mortgage  ■,(l)  and  has  relieved  against  a 
fraudulent  conveyance  of  an  estate  abroad  ;(m)  and  has  prevented  a 
defendant  by  injunction  from  taking  possession. (») 

In  Ex  parte  Pollard,  a  person  entitled  to  lands  in  Scotland  deposited 
the  deeds  on  a  money  advance.  By  the  Scotch  law  the  deposit  did  not 
create  a  lien  upon  the  land,  though  the  transaction  carried  no  illegality 
with  it.  The  bankruptcy  judges  held,  that  had  the  estate  been  in 
England  the  decree  would  not  only  have  affected  the  person,  but  have 
bound  the  land;  and  as  an  estate  in  Scotland  could  not  be  affected  by 
the  order  of  the  court,  specific  performance,  which  was  discretionary, 
would  not  be  decreed. (o)  However,  on  appeal.  Lord  Cottenham  over- 
ruled this  decision,  and  he  observed  that  though  the  deposit  by  the  law 
of  Scotland  did  not  create  any  lien  upon  the  estate,  yet  he  did  not  find 
anything  in  the  Scotch  law  contrary  to  the  well-known  rule  that  obliga- 
tions to  convey  perfected  secundum  legem  domicilii,  are  binding  against 
the  person :  that  contracts  as  to  lands  in  England  were  enforced  here  in 
personam  and  in  rem,  but  as  to  contracts  abroai  in  personam  only, 
which  did  not  interfere  with  the  lex  loci  rei  sitce:(^p)  that  if  the  law  of 
the  country  where  the  land  was  situate  would  not  permit  or  not  enable 
the  defendant  to  do  what  the  court  might  decree,  it  would  be  useless  and 
unjust  to  direct  him  to  do  the  act ;  but  where  there  was  no  such  impe- 
diment the  courts  of  this  country,  in  the  exercise  of  the  jurisdiction  over 
contracts  made  here,  or  in  administering  equities  between  parties  resid- 
ing here,  acted  upon  their  own  rules,  and  were  not  influenced  by  any 
consideration  of  what  the  effect  of  such  contracts  might  be  in  the  country 
where  the  lands  are  situate,  or  of  the  manner  in  which  the  courts  of 
such  countries  might  deal  with  such  equities. 

*Thus  the  general  rule  to  be  collected  is  that  the  power  of  the  r*jq  n 
court  to  administer  equities  or  enforce  contracts  as  to  lands  L  J 
abroad,  extends  as  far  as  the  actual  ability  of  the  parties  to  carry  the 
decree  into  effect.  But  should  the  foreign  law  pi*esent  an  insuperable 
obstacle,  the  court  will  not  make  a  decree  which  must  be  nugatory  for 
want  of  means  to  carry  it  out. 

The  case  of  Waterhouse  v.  Stansfield(g')  will  illustrate  this  distinction. 
There  Moody  had  contracted  to  purchase  an  estate  in  Demerara,  and  by 
an  indenture  dated  the  10th  of  October,  1846,  mortgaged  the  premises 
comprised  in  the  contract  to  the  plaintiffs,  Waterhouse  and  Son,  to  secure 
2000^.  and  interest :  1010/.  was  still  due  for  the  purchase-money,  which 

(h)  See  1  Ves.  454;  and  see  Roberdeau  v.  Rous,  1  Atk.  543;  Angus  t.  Angus, 
West's  Rep.  23. 

{i)  Roberdeau  v.  Rous,  1  Atk.  543.  (k)  Roberdeau  v.  Rous,  1  Atk.  544. 

(l)  Toller  V.  Carteret,  2  Vern.  494.  (m)  Arglasse  v.  Muschamp,  1  Vern.  75. 

(«)  Cranstown  v.  Johnston,  5  Yes.  278. 
(o)  Ex  parte  Pollard,  3  Mont.  &  Ayr.  340. 
{/})  Ex  parte  Pollard,  Mont.  &  Chitt.  239. 
{(/)  i)  Uare,  234;  10  Hare,  254. 


112 


LEWi:;  oy  the  law  of  trusts,  etc. 


the  plaintiffs,  with  Moody's  consent,  discharged,  and  thereupon  the  vendor 
authorized  his  agent  in  Demerara  to  pass  the  estate  to  Moody  orhismort- 
gaf'ces.  Before'this  could  be  done,  Moody,  by  an  indenture  of  the  15th 
of  ^January,  1847,  mortgaged  the  same  premises  to  Thompson  Hankey 
and  Co.,  to  secure  a  debt  owing  to  them,  who  sent  instructions  to  their 
a^ent  in  Demerara  to  effectuate  their  mortgage.  An  interdict  was 
obtained  by  him  from  the  court  of  Demerara,  to  prevent  the  completion 
of  the  plaintiffs'  mortgage.  On  the  12th  of  3Iay,  1847,  Moody  became 
bankrupt,  and  his  assignees  sold  the  premises,  and  received  the  purchase- 
moneys,  and  the  plaintiffs  now  filed  their  claim,  alleging  themselves  to  be 
equitable  mortgagees  of  the  premises,  and  to  have  a  lien  upon  the  pro- 
ceeds. It  appeared  upon  the  evidence  that  a  mortgage  in  Demerara  could 
only  be  by  act  of  court,  and  that  the  intention  of  passing  a  mortgage  must 
be  advertised  for  three  successive  Saturdays  in  the  official  Gazette,  and 
that  every  creditor  had  a  right,  by  an  interdict,  to  prevent  his  debtor, 
solvent  or  insolvent,  from  .giving  a  preference  by  mortgage  to  any  other 
creditor.  The  Yice-Chancellor  Turner  held  that  the  contract,  indeed, 
might  bind  the  bankrupt  and  the  assignees,  and  yet,  by  the  law  of  Deme- 
rara, might  not  be  capable  of  being  fulfilled  ;  that  if  it  could  be  decided 
in  favour  of  the  plaintiffs,  it  must  be  upon  the  broad  and  general  ground 
.^  -,  that  *the  property  having  been  sold,  and  the  proceeds  received 
[  "'■'^  J  by  the  assignees,  the  rights  of  the  parties  were  no  longer  governed 
by  the  law  of  Demerara,  the  lex  loci  ret  sitm,  but  must  be  governed  by 
the  law  of  this  country,  the  Ux  loci  contractus  ;  but  the  vice-chancellor 
was  of  opinion  that  the  interest  in  the  proceeds  was  in  substance  and 
effect  an  interest  in  the  estate  itself,  and  therefore  he  could  not  allow  the 
lien  upon  the  proceeds  unless  it  existed  by  the  law  of  Demerara;  also 
that  the  lien  alleged  by  the  plaintiffs  for  the  part  of  the  purchase-money 
paid  by  them  was  equally  a  question  of  Demerara  law ;  and  he  therefore 
directed  inquiries  whether  the  plaintiffs  had,  by  the  law  of  Demerara,  any 
lien  upon  the  premises  or  the  proceeds  either  under  their  mortgage  or  by 
payment  of  the  purchase-money. 

To  a  similar  principle  may  be  referred  the  case  of  Carteret  v.  Petty. (r) 
The  bill  was  by  a  tenant  in  common  for  a  partition  of  lands  in  Ireland,  and 
Lord  Nottingham  allowed  a  demurrer  to  the  bill,  on  the  ground  that 
when  a  defendant  could,  by  personal  coercion  be  compelled  to  perform  the 
act,  the  court  would  decree  it,  as  the  payment  of  money,  making  a  con- 
veyance, or  the  like;  but  where  no  obedience  of  the  person  imprisoned 
could  execute  the  decree,  it  was  in  vain  to  entertain  the  bill,  and  such 
was  this  case,  for  to  a  partition  in  chancery  it  was  necessary  to  award  a 
commission  to  some  neighbouring  justices  to  divide  the  lands,  and  if  they 
refused,  an  attachment  lay  against  them  ;  but  if  they  executed  the  com- 
mission, the  court  decreed  a  conveyance,  and  the  enjoyment  of  the  lands 
in  the  interim;  and  on  disobedience  followed  a  sequestration  and  injunc- 
tion, and  a  writ  of  assistance  to  the  sheriff",  none  of  which  could  be 
awarded  into  Ireland,  nor  be  supplied  by  the  obedience  of  the  person 
imprisoned  here.     The  distinction  between  this  case  and  Penn  v.  Lord 

(r)  2  Swans.  323,  note  (a,)  and  2  Ch.Ca.  214:  but  see  Penn  v.  Lord  Baltimore, 
1  Yes.  444,  and  Belt's  Supplement,  and  TuUoeh  v.  Hartley,  1  Y.  &  C.  Ch.  Ca.  114. 


"WnAT    PROPERTY    MADE    SUBJECT    OF    A    TRUST.      113 

Baltimore,  therefore,  was,  that  iu  the  former  the  court  was  called  upon 
to  make  a, partition ,  a  jurisdiction  that  could  not  be  exercised,  for  the 
reasons  stated  in  the  judgment;  while  in  the  latter  the  court  compelled 
the  defendant  to  execute  a  contract,  and  do  all  ^necessary  acts  r:j:--|  -i 
for  that  purpose,  and  if  he  failed  to  comply  he  became  liable  to  L  J 
a  contempt. 

Martin  v.  Martin(s)  was  a  singular  case,  and  is  frequently  cited. 
Maria  Martin,  an  infant,  was  entitled  to  considerable  personal  estate,  and 
to  a  moiety  of  a  plantation  iu  Demerara.  A  suit  was  instituted  for  the 
protection  of  her  estate,  and  pending  the  suit,  and  during  the  infancy, 
she  intermarried,  without  the  consent  of  the  court,  with  Anthony  Martin. 
An  order  was  made,  referring  it  to  the  master  to  approve  of  a  settlement 
of  her  real  and  personal  estate,  and  by  an  indenture  of  the  27th  of 
August,  1802,  executed  with  the  sanction  of  the  court,  Maria  3Iartin 
assigned  her  personal  estate  to  trustees  upon  trust,  after  raising  a  certain 
sum  therein  mentioned,  to  lai/  out  the  trust  estate  in  government  or  real 
securities  for  her  separate  use  during  the  coverture,  and  if  she  survived 
her  husband,  upon  trust  as  to  one  moiety  for  her  absolutely ;  and  as  to 
the  other  moiety,  upon  trust  for  the  children  of  the  marriage,  and  if  no 
children,  for  her  absolutely;  but  if  she  died  in  the  life-time  of  her  hus- 
band, upon  trust,  as  to  one  moiety,  for  the  husband  for  life,  and  subject 
thereto,  upon  trust  as  to  the  whole,  for  the  children,  and  if  no  children, 
for  the  husband  for  life,  and  after  his  death  upon  trust  as  the  wife  should 
appoint,  or  for  her  next  of  kin.  And  as  to  the  Demerara  estate,  the 
husband  covenanted,  and  the  wife  agreed,  that  it  should  be  conveyed  to 
the  trustees  upon  the  like  trusts  as  were  before  declared  concerning  the 
trust  moneys,  and  the  stocks,  funds,  and  securities  in  which  the  same 
should  be  invested,  and  that  the  plantation  should  be  considered  as  per- 
sonal  estate,  and  that  until  the  conveyance,  the  rents  should  be  applied 
in  like  manner  as  if  the  assurance  had  been  actually  made.  In  180G,  A. 
Martin,  and  his  wife  who  had  now  attained  the  age  of  twenty-one,  pur- 
ported to  convey  the  Demerara  estate  to  the  trustees  of  the  settlement,  iu 
pursuance  of  the  articles.  Subsequently,  3Iartin  and  his  wife  passed  the 
estate,  by  an  act  of  court  in  Demerara,  to  a  mortgagee,  for  securing 
advances  by  him  for  the  benefit  of  the  wife  and  children,  and  supplies  to 
the  estate.  Mrs.  3Iartin  afterwards  filed  her  bill  to  set  aside  the  ^  ^..,  -. 
*mortgage,  and  have  the  articles  and  settlement  established.  It  •-  "  -■ 
was  found  by  the  master,  that  by  the  law  of  Demerara  there  was  no  mode 
of  settling  property  upon  the  wife  and  children ;  that  the  conveyance  of 
1806  was  inoperative,  inasmuch  as  lauds  in  Demerara  could  only  be  passed 
by  an  act  of  court,  and  that  the  legal  estate  was  in  the  mortgagee;  that, 
by  the  law  of  Demerara,  there  was  besides  a  lien  upon  the  property  for 
moneys  allowed  to  a  wife  and  her  children,  and  for  supplies  to  the  estate. 
For  the  plaintiff,  it  was  argued  that,  under  the  articles,  the  Demerara 
estate  ought  to  have  been  sold,  and  converted  into  money,  and  invested 
upon  the  trusts  of  the  settlement,  and  that  the  mortgagee,  having  notice 
of  the  settlement,  was  bound  by  the  equity.     However,  the  court  decided 

{s)   2  Russ.  &  Myl.  507. 


114  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

that  the  plaintiff  had  no  equity  against  the  mortgagee,  though  he  had 
notice,  for,  assuming  that  the  plaintiff  could  compel  a  sale,  it  must  be 
subject  to  the  prior  lien  found  by  the  master  for  advances  to  the  wife 
and  children,  and  supplies  to  the  estate.  Had  the  lien  not  existed,  the 
court  thought  the  plaintiff  might  have  compelled  a  sale  as  against  the 
husband,  but  that  such  equity  attached  not  to  the  estate,  but  to  the  per- 
son only :  that  after  the  institution  of  a  suit,  the  equity  would  have 
bound  the  estate,  but  until  bill  filed,  the  husband  could  make  a  good  title 
even  to  a  purchaser  with  notice ;  and  the  court  instanced  the  case  of  a 
husband,  the  apparent  owner  of  two  estates  of  equal  value,  and  that  he 
made  a  settlement  of  estate  A.  under  the  direction  of  the  court,  and  that 
the  trustees  were  afterwards  evicted  by  defect  of  the  husband's  title :  in 
that  case  the  court  would  oblige  the  husband  to  make  a  settlement  of  B., 
but  that  until  the  bill  was  on  the  file  the  husband  remained  the  owner 
of  estate  B.,  and  could  effectually  sell  or  charge  it.((;) 

The  decree  in  the  above  case  may  be  supported  on  the  single  ground 
of  the  mortgagee's  lien  for  advances  and  supplies,  but  the  distinction 
taken  by  the  court  that  the  articles  could  have  been  enforced  against  the 
husband  himself,  but  did  not  bind  a  purchaser  from  him  with  full  notice, 
r  *Kq  -I  appears  to  be  a  *somewhat  refined  and  subtle  distinction,  and 
L         -J  scarcely  in  harmony  with  Ex  parte  Pollard  and  other  cases. 

A  question  still  remains  how  far  trusts  not  constructively  but  properly 
such  can  be  applied  to  lands  abroad.  Should  the  foreign  law  itself  re- 
cognize the  distinction  between  the  legal  and  equitable  estates,  there 
could  be  no  objection  to  the  execution  of  trusts  here  corresponding  to 
those  allowed  abroad.  Should  an  equitable  estate  be  not  known  to  the 
foreign  law,  still  should  the  lands  be  capable  of  settlement  there,  a  trust 
might  be  legitimately  created  here,  analogous  to  the  limitations  permitted 
by  the  foreign  code.  But  should  the  lex  loci  neither  permit  an  equita- 
ble estate,  nor  successive  limitations  of  the  legal  estate,  it  could  hardly 
be  contended  that  an  English  settlement  by  way  of  trust  could  be 
ingrafted.  The  law  applicable  to  lands  in  England  has  a  local  character, 
and  the  courts  act  upon  the  principle  that  land  universally  must  be 
governed  by  the  law  of  the  country  where  it  is  situate.  How  then  could 
a  system  adapted  exclusively  to  lands  in  England  be  transplanted  and 
affixed  to  lands  abroad  ?  Could  entails,  for  instance,  be  created  where 
none  are  allowed,  and  if  created,  by  what  machinery  could  they  be 
barred  ?  It  has  been  seen  that  in  the  case  of  copyholds,  when  the  cus- 
tom of  the  manor  does  not  allow  entails  of  the  legal  estate,  none  can  be 
created  of  the  equitable,  and  the  same  principle  will  apply  to  trusts  of 
foreign  lands. 

The  few  authorities  upon  the  subject  are  in  accordance  with  this  view. 
In  Martin  v.  Martin, (?<)  cited  above,  it  will  be  observed  that  though  the 
court  was  of  opinion  that,  under  the  marriage  contract,  the  Demerara 
estate  might  have  been  sold  and  the  trusts  attached  to  the  proceeds,  it 

{t)  As  to  personal  equities,  see  further,  Morse  v.  Faulkner,  1  Anst.  11.  3  Sw. 
429  note  (a ;)  Averall  v.  Wade,  LI.  &  Go.  temp.  Sugden.  261  ;  Johnson  v.  Holds- 
worth,  1  Sim.N.  S.  108.  i         &        ,  ; 

(?«)   2  Russ.  &  Myl.  507. 


WHAT    PROPERTY    MADE    SUBJECT    OF    A    TRUST.      115 

did  not  occur  either  to  the  bar  or  the  bench  that  the  legal  estate  could 
be  held  upon  the  trusts  of  the  settlement  without  a  conversion. 

Again,  in  Glover  v.  Strothoff,(i')  a  testatrix  had  taken  a  heritable  bond 
charged  upon  lands  in  Scotland  in  the  names  of  trustees  upon  trust  for 
her,  and  by  her  will  executed  according  to  the  Statute  of  Frauds,  she 
devised  the  heritable  bond,  and  the  question  was  whether  the  will  was 
not  inoperative.  *The  heir  insisted  that  by  the  law  of  Scotland  ^  ^r.  -, 
a  heritable  bond  was  not  devisable.  Lord  Thurlow  asked,  <'  Is  L  J 
not  the  bond  on  a  trust  ?"  but  it  was  answered  that  the  trust  was  a 
scheme  to  get  rid  of  the  lex  loci,  and  eventually  the  court  directed  an 
inquiry  whether  by  the  law  of  Scotland  the  heritable  bond  had  passed 
by  the  will. 

In  Nelson  v.  Bridport,(«5)  Viscount  Nelson,  being  entitled  to  the 
duchy  and  estate  of  Bronte,  in  Sicily,  by  his  will  appointed  W.  Nelson 
and  W.  Hazlewood  to  succeed  to  the  duchy  and  estate,  and  devised  the 
same  to  them  accordingly,  upon  trust  nevertheless  to  settle  and  convey 
the  premises  to  the  uses  and  upon  the  trusts  thereinafter  mentioned,  if 
the  law  of  Sicily  would  permit,  and  if  not,  then  in  such  manner  as  in 
the  discretion  of  his  trustees  would  best  correspond  with  the  purposes 
thereinafter  mentioned  j  that  was  to  say,  to  the  use  of  W.  Nelson  for 
life,  with  remainder  to  his  first  and  other  sons  in  tail,  with  remainder  to 
Mrs.  Bolton  for  life,  with  remainder  to  her  first  and  other  sons  in  tail, 
with  remainders  over,  and  the  testator  empowered  his  trustees,  at  their 
toill  and  pleasure,  to  sell  the  Bronte  estate  and  invest  the  proceeds  in 
the  purchase  of  lands  in  England,  Ireland,  or  Wales,  to  be  settled  to  the 
like  uses,  and  if  the  testator's  iiitention  could  he  better  accomplisTiecl 
through  the  medium  of  a  trust  than  an  actual  settlement,  he  authorized 
the  trustees  to  retain  the  legal  estate  until  the  trusts  could  he  performed, 
and  to  apply  the  rents  accordingly.  It  appeared  that  the  duchy  had 
been  granted  to  Viscount  Nelson,  so  that  he  or  the  heirs  lawfully 
descending  of  his  body,  or  from  the  person  whom  he  should  nominate  as 
after  mentioned,  should  be  Dukes  of  Bronte  and  hold  the  duchy  accord- 
ing to  the  law  of  the  Franks ;  and  the  charter  gave  him  a  power  to 
nominate  whom  he  would,  whether  a  relative  or  not,  as  a  person  to  whom 
the  like  investiture  should  be  granted.  On  the  death  of  Viscount  Nel- 
son, William  Nelson,  one  of  the  trustees  and  tenant  for  life^  received  in- 
vestiture as  Duke  of  Bronte,  and  some  years  afterwards,  a  law  having 
passed  in  Sicily  enabling  the  alienation  of  entailed  estates,  William 
devised  the  property  to  his  daughter.  Lady  Bridport,  who,  on  his  death, 
entered  upon  possession.  ^Plaintiff"  being  the  person  entitled  r^^^-i 
under  the  limitations  in  the  will  of  Viscount  Nelson,  filed  his  L  J 
bill  against  Lady  Bridport  for  the  recovery  of  the  estate.  There  was 
great  conflict  of  evidence  as  to  the  law  of  Sicily,  but  the  court  came  to 
the  conclusion  that  the  trustees  could  not  have  settled  the  estate  in  strict 
accordance  with  the  will,  and  that  the  investiture  of  William  Nelson, 
the  first  tenant  for  life,  was  the  nearest  approach  that  could  be  made  to 
the  settlement,  and  that  the  absolute  ownership  conferred  by  the  subse- 

{v)  2  B.  C.  C.  33.  (w)  8  Beav.  547. 


116  LEAVIN    ON    THE    LAW    OF    TKUSTS,    ETC. 

quent  law  did  not  vary  the  rights  of  the  parties,  and,  therefore,  that 
William  Nelson,  having  lawfully  received  investiture  in  the  first  instance, 
could  afterwards  dispose  absolutely  of  the  estate  in  favour  of  his  daughter. 
William  Nelson  was  regarded  as  having  acquired  the  legal  estate  under 
the  will  in  execution  of  the  power  conferred  by  the  charter,  but  the 
court  apparently  assumed  throughout  that  English  trust  would  have  no 
effect  upon  a  Sicilian  estate  ;  and  the  Master  of  the  Rolls  observed, 
<'  The  incidents  to  real  estate,  the  right  of  alienating  or  limiting  it,  and 
the  course  of  succession  to  it,  depend  entirely  on  the  law  of  the  country 
where  the  estate  is  situated.  Lord  Nelson  having  accepted  this  Sicilian 
estate  could  deal  with  it  only  as  the  Sicilian  law  allowed  ;  he  had  a  right 
to  appoint  a  successor,  but  no  right  to  modify  the  estate,  interest,  or 
or  power  of  disposition  to  which  the  successor  was  entitled  by  the  law  of 
Sicily."(a;) 


[*56]  *CHAPTEIl   V. 

OF   THE   FORMALITIES  REQUIRED  FOR  THE  CREATION  OF  A  TRUST. 

Upon  this  subject  we  propose  to  treat,  First,  Of  declarations  of  trusts 
at  common  law.  Secondly,  Of  the  Statutes  of  Frauds.  Thirdly,  Of  the 
Statutes  of  Wills.     And  Fourthly,  Of  transmutation  of  possession. 

SECTION  I. 

OF  TRUSTS  AT  COMMON  LAW. 

Trusts  like  uses  are  of  their  own  nature  averrable,  i.  e.,  may  be  de- 
clared by  word  of  mouth  without  writing ;(«)  as,  if  before  the  Statute  of 
Frauds  an  estate  had  been  conveyed  unto  and  to  the  use  of  A.  and  his 
heirs,  a  trust  might  have  been  raised  by  parol  in  favour  of  B.,(6)  and 
since  the  statute,  though  in  respect  of  lands  a  trust  cannot  be  declared  by 
mere  parol,  no  other  formality  is  requisite  than  a  simple  note  in  writing 
not  under  seal.(c) 

But  the  court,  following  the  analogy  of  uses,  will  not  permit  the  aver- 
ment of  a  trust  in  contradiction  to  any  expression  of  intention  on  the 
face  of  the  instrument  itself. (c?) 

(x)  8  Beav.  570. 

(a)  See  Fordyce  v.  Willis,  3  B.  C.  C.  587 ;  Benbow  v.  Townsend,  1  M.  &  K. 
506;  Bagley  v.  Boulcott,  4  Russ.  347;  Crabb  v.  Crabb,  1  M.  &  K.  511;  Kilpin  v. 
Kilpin,  Id.  520. 

(b)  See  Bellasis  v.  Compton,  2  Vern.  294;  Fordvce  v.  Willis,  3  B.  C.  C.  587  ; 
Thruxton  v.  Attorney-General,  1  Vern.  341. 

(c)  Adlington  v.  Cann,  3  Atk.  151,  per  Lord  Hardwicke  ;  Boson  v.  Statham,  I 
Ld.  a  13,  per  Lord  Keeper  Henley. 

3  bV^C^^^  ^"  ^^^^^'  ^  ^^"  ^^^"  '^^'  ^'^^^^'^  '=^^^'  ^  ^^s^-  ^^>  Fortlyce  v.  Willis, 


I 


FORMALITIES  REQUIRED  TO  CREATE  A  TRUST.  HJ 

Nor  is  it  necessary  in  order  to  exclude  averment  that  the  beneficial 
ownership  should  be  conferred  upon  the  grantee  of  the  legal   estate 

expressly,  for  a  trust  cannot  be  raised  by  *parol,  if,  from  the  ^  ^ . 

nature  of  the  instrument,  or  ani/  circumstance  of  evidence  appear-  L  J 
ing  on  the  face  of  it,  an  intention  of  making  the  legal  holder  the  bene- 
ficiary also,  can  be  clearly  implied.  Thus  a  trust  cannot  be  averred, 
where  a  valuable  consideration  is  paid  •,[e\  and  if  a  pension  from  the 
crown  be  granted  to  A.,  a  trust  cannot  be  raised  by  parol  in  favour  of 
B. ;  for  a  pension  is  conferred  upon  motives  of  honour,  and  the  induce- 
ments to  the  bounty  are  the  personal  merits  of  the  annuitant.(/) 

And  it  was  a  principle  of  uses,  that,  on  di  feoffment,  which  could  be 
made  by  parol,  a  use  might  be  declared  by  parol;  but  where  a  deed  was 
necessary  for  passing  the  legal  estate,  there  the  use  which  was  ingrafted 
could  not  be  raised  by  averment.((7)  As  trusts  have  been  modelled  after 
the  likeness  of  the  use,(7A  the  distinction  at  the  present  day  may  deserve 
consideration.  It  is  laid  down  by  Duke  expressly,  that,  where  the  things 
given  may  pass  vnthoxit  deed,  there  a  charitable  use  may  be  averred  by 
witnesses}  but,  where  the  ihin^?,  cannot p)ass  icithout  deed,  there  charita- 
ble uses  cannot  be  averred  without  a  deed  proving  the  use.(/)  And 
Lord  Thurlow,  it  is  probable,  alluded  to  the  same  distinction  when  he 
observed,  "  I  have  been  accustomed  to  consider  uses  as  averrable,  but 
perhaps  when  looked  into,  the  cases  may  relate  io  feoffment,  not  to  con- 
veyances by  bargain  and  sale,  or  lease  and  release. 'V")  And  in  Adling- 
ton  V.  Cann,(A')  where  a  testator  devised  the  legal  estate  in  lands  to  A. 
and  B.  and  their  heirs  by  a  will  duly  executed,  and  left  an  unattested 
paper  referring  to  trusts  for  a  charity,  Mr.  Wilbraham  in  the  argument 
observed,  <<  If  this  were  a  voluntary  deed,  would  a  j^ciper,  even  declaring 
a  trvTst,  be  sufficient  to  take  it  from  the  grantee?  no,  certainly ;"(/)  and 
it  is  very  observable  that  Lord  Hardwicke,  in  *referring  to  this  r  >^rQ  -■ 
observation,  excludes  the  case  of  a  deed,  and  lays  it  down  that  L  -' 
"  if  the  testator  had  made  z  feoffment  to  himself  and  his  heirs,  and  left 
such  di  paper,  this  would  have  been  a  good  declaration  of  trust."(w) 

The  averment  of  a  trust  was  never  permitted  as  against  a  devisee.  A 
devise,  as  was  resolved  in  Vernon's  case,  implies  a  consideration,  and 
therefore  cannot  be  averred  to  the  use  of  another ;(?))  for  that,  observes 
Lord  Chief  Baron  Gilbert,  were  an  averment  contrary  to  the  design  of 
the  will  appearing  in  the  words  ;(o)  and  accordingly  in  Lady  Portington's 
case,(2))  the  Court  of  Queen's  Bench  refused  to  admit  evidence  against 
the  devisees,  both  from  the  Statute  of  Frauds  and  aho  from  the  nature 
of  the  thing.     It  is  laid   down,  indeed,  by  Jenkins,  that  an  averment 

(c)  See  Gilb.  on  Uses,  51,  57;  Pilkington  v.  Bayley,  7  B.  P.  C.  526. 

(/■)  Fordyce  v.  Willis,  3  B.  C.  C.  587.  {g)  Gilb.  on  Uses,  270. 

(X)  See  Fordyce  v.  Willis,  3  B.  C.  C.  587  ;  Lloyd  v.  Spillet,  2  Atk.  150;  Attor- 
ney-General V.  Lockley,  Append,  to  Vend.  &  Purch.  No.  16,  11th  ed.;  Chaplin  v. 
Chaplin,  3  P.  W.  234;  Attorney-General  v.  Scott,  Rep.  t.  Talb.  139;  Burgess  v. 
Wheate,  1  Ed.  195,  217,  248  ;  Geary  v.  Bearcroft,  Sir  0.  Bridg.  488. 

{i)  Duke,  141.  (/)  Fordyce  v.  Willis,  3  B.  C.  C.  587. 

[k)  3  Atk.  141.  (/)  lb.  145. 

(m)  3  Atk.  151.  (?i')  4  Rep.  4,  a. 

(o)  Gilb.  on  Uses,  162.  [p)  1  Salk.  162. 


118  LEWIN    ON    THE    LAW    OF    T  K  U  S  T  S,    ETC. 

onight  be  at  common  law  upon  a  will,  though  it  was  in  writing ;  but  his 
only  authority  in  support  of  this  position  is  a  case  that  has  evidently 
been  mistaken.     "A  devise,"  he  says  (by  the  custom  of  London  before 
the  Statute  of  Wills,)  ''was  to  A.,  B.,  and  C,  and  that  A.  should  have 
all  the  profits  during  his  life.     Upon  a  suit  in  chancery  by  the  heir  of 
A.,  the  trust  of  this  land  was  averred  to  be  reposed  in  the  said  A.,  B., 
and  C,  to  the  use  of  A.  and  his  heirs;  and  it  was  so  proved.     The 
chancellor  made  a  decree,  by  the  advice  of  the  judges,  that  A.  being 
dead,  his  heir  should  have  the  \and."{q)     But  the  case,  as  stated  by 
ritzherbert,(r)   from  whom  it  is  cited  by  Jenkins,  involved   a   very 
different  question.     A  citizen  of  London  had  devised  to  his  son  and  three 
others,  and  his  will  was  that  one  of  the  three  should  have  the  profits  for 
life.     The  cestui  que  trust  for  life  died,  and  the  heir  (viz.  of  the  testator, 
and  not  of  the  cestui  que  trust)  filed  his  bill  in  chancery  as  entitled  to 
the  resulting  interest,  and  prayed  a  conveyance.     It  was  argued  for  the 
trustees,  that  in  a  feoffment  the  use  would  have  resulted ;  but  in  a  will 
the  devisees  were  intended  to  take  every  beneficial  interest,  that  was  not 
expressly  disposed  of  from  them.     But  the  court  refused  to  recognize 
the  distinction,  and  decreed  a  resulting  trust  to  the  testator's  heir. 
r*p.O  n       Upon  the  same  principle  the  averment  of  a  trust  was  always 
L        J  ^inadmissible  as  against  a  legatee,  and  though  the  law  for  a  long 
time  fluctuated  in  respect  of  an  executor  claiming  the  surplus  of  the 
personal  estate,(s)  it  was  at  length  determined  that  even  the  executor's 
beneficial  title  could  not  be  defeated  by  parol.     Upon  the  latter  point 
the  following  distinctions  were  observed : — 1st.  Where  a  person  was 
simply  appointed  executor,  which  conferred  upon  him  a  legal  title  to 
the  surplus,  averment  was  not  admissible  to  make  him  a  trustee  for  the 
next  of  kin.((')     2dly.  If  from  any  circumstance  appearing  on  the  face 
of  the  will,  as  the  gift  of  a  legacy  to  the  executor,  the  law  presumed  he 
was  not  intended  to  take  the  surplus  beneficially,  the  executor  was  at 
liberty  to  rebut  that  presumption  by  the  production  of  parol  evidence,(«) 
and  of  course  the  next  of  kin  might  then  fortify  the  presumption  by 
opposing  parol  evidence  in  contradiction.     But,  Sdly.  Where  the  will 
itself  invested  the  executor  with  the  character  of  trustee,  as  by  giving 
him  a  legacy  "for  his  trouble,"  or  by  styling  him  a  "  trustee"  expressly 
the  prima  facie  title  to  the  surplus  was  then  in  the  next  of  kin,  and 
parol  evidence  was  not  admissible  to  disprove  the  express  intention. (r) 

By  the  late  Act  11  G.  4,  &  1  W.  4,  c.  40,  an  executor  \?,  prima  facie 
a  trustee  for  the  next  of  kin.(?/')  But  where  there  are  no  next  of  kin 
the  title  of  the  executor,  as  against  the  croicn,  is  not  affected  by  the 
statute,  but  he  may  still  take  beneficially. 

(?)  Jenk.  3  Cent.  Ca.  26.  (r)  Fitzherb.  Ab.  Devise,  22. 

(s)  See  Povey  v.  Juxon,  Nels.  135;  Fane  v.  Fane,  1  Vern.  30. 

(<)  Langham  v.  Sandford,  19  Ves.  644,  per  Lord  Eldon :  White  v.  Williams.  3 
V.  &  B.  •?2  ;  S.  C.  Coop.  58. 

(m)  Walton  V.  Walton,  14  Ves.  322,  per  Sir  W.  Grant. 

{v)  Rachfield  v.  Careless,  2  P.  W.  158  ;  Langham  v.  Sandford.  17  Ves.  435  ;  S. 
C.  19  Yes.  641 ;  Golding  v.  Yapp,  5  Mad.  59  ;  White  v.  Evans,  4  Ves.  21 :  Walton 
Y.  Walton,  14  Yes.  322,  per  Sir  W.  Grant. 

(w)  See  Love  v.  Gaze,  8  Beav.  472. 


FORMALITIES    REQUIIIED    TO    CREATE    A    TRUST.    119 

The  declaratioa  of  a  use  by  the  Jcing  must  have  been  by  letters- 
patent  ;(x)  and  it  seems  the  same  doctrine  is  now  applicable  to  trusts. (y) 
Nor  could  a  use  have  been  declared  to  the  king  in  the  ordinary  mode. 
The  king,  says  Chief  Baron  Gilbert,  "  cannot  have  a  feoffee  to  his  use, 
because  he  cannot  take  but  by  matter  of  record ;  but,  if  the  use  he  found 
hy  office  upon  record,  then  he  may  take."(2;)  However,  Lord  Bacon 
*seems  to  have  thought,  that  the  purpose  of  the  inquest  was  not  ^  ^-.^  -. 
to  make,  but  to  find  the  title ;  for  he  says,  "  It  behoveth  both  L  J 
the  declaration  of  the  use,  and  the  conveyance  itself  to  be  matter  of 
record,  because  the  king's  title  is  compounded  of  both. "(a) 


SECTION  II. 

OF   THE   STATUTE   OP   FRAUDS 

By  the  seventh  section  of  the  Statute  of  Frauds(Z>)  it  is  enacted,  that 
"  all  declarations  or  creations  of  trusts  or  confidences  of  any  lands,  tene- 
ments, or  hereditaments,  shall  be  manifested  andprovedhj  some  loriling, 
signed  by  the  party  who  is  by  law  enabled  to  declare  such  trust,  or  by 
his  last  will  in  writing,  or  else  they  shall  be  utterly  void  and  of  none 
efi"ect." 

Upon  the  subject  of  this  enactment  we  shall  first  briefly  point  out 
what  interests  are  within  the  act,  and,  secondly,  what  formalities  are 
required  by  it. 

1.    Of  the  interests  loithin  the  act. 

Copyholds  are  to  be  deemed  within  the  operation  of  the  clause,  for,  as 
a  trust  is  engrafted  on  the  estate  of  the  copyhold  tenant,  the  rights  of 
the  lord,  who  claims  by  title  paramount,  cannot  in  any  way  be  injuriously 
afieeted.(c)  A  trust,  therefore,  cannot  be  declared  by  parol  so  as  to 
make  the  copyholder  a  trustee  for  another. 

Mr.  Hargrave  seems  to  have  thought,  that  even  the  iises  of  a  surrender 
were  trusts  within  the  intention  of  the  act ;  for,  in  a  note  to  Coke  on 
Littleton  he  observes,  "  A  nuncupative  will  of  copyholds  was  a  valid 
declaration  of  the  uses,  where  the  surrender  was  silent  as  to  the  form, 
till  the  29  Car.  2,  required  all  declarations  of  trusts  to  be  in  writing."(l) 
But  the  surrender  *of  a  copyhold  to  uses  is  merely  a  direction  to  j-  5,,^,  -■ 
the  lord  in  what  manner  to  regrant  the  estate,  and  the  surrenderee  L  J 
is  a  cestui  que  use  by  misnomer  only,  and  not  in  fact;  and  indeed  the 
Court  of  Queen's  Bench  has  expressly  decided  that  uses  of  copyholds 

(2)  Bacon  on  Uses,  66. 

If)  Fordjce  v.  Willis,  3  B.  C.  C.  577.  (z)  Gilb.  on  Uses,  44,  204. 

(a)  Bacon  on  Uses,  60.  (6)   29  Car.  2,  c.  3. 

(c)  See  Withers  v.  Withers,  Amb.  151  ;  Goodright  v.  Hodges,  1  Watk.  on  Cop. 
227  ;  S.  C.  Lofft.  230;  Acherley  v.  Acherley,  7  B.  P.  C.  273  ;  but  see  Devenish  v. 
Baines,  Pr.  Ch.  5. 

(1)  Mr.  Watkins  argues,  and  apparently  both  on  principle  and  authority  (see 
Devenish  v.  Baines,  Pr.  Ch.  3,)  that  a  nuncupative  will  of  copyholds  was  effectual. 
1  Wat.  Cop.  130.  Now  by  the  late  Will  Act  (1  Vict.  c.  26,)  copyholds  have  been 
put  on  the  same  footing  with  other  property. 


120  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

are  not  within  the  Statute  of  Frauds,  on  the  ground  that  a  surrender  to 
uses  is  not  the  creation  of  a  trust  or  confidence  apart  from  the  legal  estate, 
but  a  mode  established  by  custom  of  transferring  the  legal  estate  itself.((/) 

Chattels  real  are  within  the  purview  of  the  act,  and  a  trust  of  them 
must  therefore  be  evidenced  by  writing  as  in  the  case  of  freeholds. (e) 

But  chattels  personal  are  not  within  the  act,  and  a  trust  by  averment 
will  be  supported. (/)  It  has  even  been  held  that  a  sum  of  money  se- 
cured upon  a  mortgage  of  real  estate,  is  not  an  interest  within  the  act, 
and  that  a  parol  declaration  is  good.((7)  And  if  a  trust  be  once  created 
by  parol  declaration,  it  cannot  be  affected  by  any  subsequent  parol  de- 
clarations of  the  settlor.(/i) 

An  attempt  was  formerly  made  to  have  a  charitahle  use  excepted 
from  the  statute,  but  Lord  Talbot  decreed,  (i)  and  Lord  Hardwicke 
affirmed  the  decision, (y)  and  Lord  Xorthington  said  every  man  of  sense 
must  subscribe  to  it, (A;)  that  a  gift  to  a  charity  must  be  treated  on  the 
same  footing  with  any  other  disposition. 

r*fi91  Lady  Portington's  case(/')  it  was  held  by  the  Court   of 

L  J  Queen's  Bench,  that  the  crown  was  bound  by  the  Statute  of 
Frauds,  and  therefore  was  not  at  liberty  to  prove  a  superstitious  use  by 
parol ;  but  in  the  Court  of  Exchequer  it  was  ruled,  on  the  contrary,  that 
the  Statute  of  Frauds  did  not  bind  the  crown,  but  took  place  only  be- 
tween party  and  party.  Lord  Hardwicke  expressed  his  doubts  upon  the 
latter  doctrine,  that  the  crown  is  not  bound  by  a  statute  unless  specially 
named;  but  at  the  same  time  mentioned  a  case  in  which  that  doctrine 
had  been  followed. (m) 

It  seems  the  statute  will  not  apply  to  lands  situate  in  a  colony  planted 
before  the  Statute  of  Frauds  was  passed. (h)  Planters  carry  out  with  them 
their  own  laws  as  they  were  subsisting  at  that  time;  but  subsequent 
enactments  at  home  will  not  follow  them  across  the  seas,  unless  it  be  so 
specially  provided.  A  fortiori  the  Statute  of  Frauds  will  not  affect 
foreign  lands  not  subject  to  the  crown  of  England. 

If  a  bill  be  filed  to  have  the  benefit  of  a  parol  trust  of  lands,  is  a  de- 
fendant, who  would  rely  on  the  Statute  of  Frauds  as  a  bar,  bound  to 

{d)  Doe  V.  Danvers,  7  East,  299. 

(e)  Skett  V.  Whitmore,  Freem.  280 ;  Foster  v.  Hale,  3  Yes.  696  ;  Riddle  v. 
Emerson,  1  Vern.  108;  and  see  Hutchins  v.  Lee,  1  Atk.  447:  Bellasis  v.  Compton, 
2  Vern.  294. 

(/)  Bayley  v.  Boulcott,  4  Russ.  347,  per  Sir  J.  Leach  ;  M'Fadden  t.  Jenkyns, 
1  Hare,  461,  per  Sir  J.  Wigram ;  S.  C.  1  Ph.  157,  per  Lord  Lyndhurst ;  Thorpe  v. 
Owen,  5  Beav.  224  ;  George  v.  Bank  of  England,  7  Price,  646  ;  Hawkins  v.  Gar- 
dener, 2  Smale  &  Gif.  451,  per  V.  C.  Stuart ;  Fordyce  v.  Willis,  3  B.  C.  C.  587, 
per  Lord  Thurlow;  Benbow  v.  Towusend,  1  M.  &  K.  510,  per  Sir  J.  Leach;  Fane 
V.  Fane,  1  Vern.  31,  per  Lord  Nottingham  ;  Nab  v.  Nab,  10  Mod.  404.  But  this 
case,  as  reported  1  Eq.  Ca.  Ab.  404,  appears  an  authority  the  other  way. 

{g)  Benbow  v.  Townsend,  1  M.  &  K.  506;  and  see  Bellasis  v.  Compton,  2  Vern. 

(A)  Kilpin  V.  Kilpin,  1  M.  &  K.  520,  see  539 ;  Crabb  x.  Crabb,  1  M.  &  K.  511. 
(«)  Loyd  V.  Spillet,  3  P.  W.  344. 

(y)  S.  C.  2  Atk.  148;  S.  C.  Barn.  384;  and  see  Adlington  v.  Cann,  3  Atk.  150. 
(A)  Boson  V.  Statham,  1  Ed.  513. 

1^\^!",^.'^-  Poi'tingtoQ,  1  Salk.  162  ;  and  see  Adlington  v.  Cann,  3  Atk.  146. 

{m)  Adhugton  v.  Cann,  3  Atk.  154. 

(«)  See  2  P.  W.  75 ;  and  see  Gardiner  v.  Fall,  1  J.  &  W.  22. 


FORMALITIES    REQUIRED    TO    CREATE    A    TRUST.    121 

plead  it  ?  The  analogy  of  the  section  of  the  same  statute  relating  to 
contracts  touching  interest  in  lands,  would  lead  to  the  inference  that  to 
a  bill  for  the  execution  of  a  parol  trust,  the  defendant  must  plead  the 
statute  or  he  will  be  deemed  to  waive  the  bar.  The  point,  however, 
remains  to  be  decided. (o) 

2.    What  formalities  are  required  hy  the  statute. 

The  principal  point  to  be  noticed  is,  that  trusts  are  not  necessarily  to 
be  declared  in  writing,  but  only  to  be  manifested  and  proved  hy  writing  ; 
for,  if  there  be  written  evidence  of  the  existence  of  such  a  trust,  the 
danger  of  parol  declarations,  against  which  the  statute  was  directed,  is 
effectually  removed. (p)  It  may  be  questioned  whether  the  act  did  not 
intend  that  the  ^declaration  ;Vse{/' should  be  in  writing  ;  for  the  ^^  ^g  -, 
ninth  section  enacts,  that  "  all  grants  and  assignments  of  any  trust  L  J 
or  confidence  shall  likeicise  he  in  writing,  signed  by  the  party  granting 
or  assigning  the  same,  or  by  such  last  will  or  devise  ;"(^)  but,  whatever 
may  have  been  the  actual  intention  of  the  legislatvire,  the  construction 
put  upon  the  clause  in  practice  is  now  firmly  established. 

The  statute  will  be  satisfied,  if  the  trust  can  be  manifested  by  any 
subsequent  acknowledgment  of  the  trustee,  as  by  an  express  declaration 
by  him,(r)  or  any  memorandum  to  that  effect,(s)  or  by  a  letter  under  his 
hand,(f)  by  his  answer  in  chancery,(ii)  or  by  a  recital  in  a  bond,(«)  or 
deed,(2f)  &c. ;  and  the  trust,  however  late  the  proof,  takes  effect  from 
the  creation  of  the  trust.  Even  where  a  lease  was  granted  to  A.,  who 
afterwards  became  bankrupt,  and  then  executed  a  declaration  of  trust 
in  favour  of  B.,  a  jury  having  found  upon  an  issue  directed  from  chan- 
cery that  A.'s  name  was  hona  fide  used  in  the  lease  in  trust  for  B.,  it 
was  held  the  assignees  of  A.  had  no  title  to  the  property. (.t)  In  another 
case,  on  the  marriage  of  Lord  Windsor  with  Miss  Tovey,  certain  estates 
of  his  lordship,  called  Breedon  and  Redmarley,  were  omitted  from  the 
settlement  with  a  view  of  selling  them  and  purchasing  others  more  con- 
venient, which  when  purchased  were  to  be  settled.  About  the  same 
time  Lord  Windsor,  by  Emes,  his  agent,  contracted  for  the  purchase  of 
the  manor  of  Bromsgrove,  and  Lord  Windsor  and  Emes  bound  them- 
selves to  pay  the  purchase-money.     The  conveyance  was  made  to  Lord 

(o)  See  Cottington  v.  Fletcher,  2  Atk.  155  ;  Wood  v.  Midgley,  5  De  Gex.  M.  k 
G.  41.  ^      ^ 

{p)  Forster  v.  Hale,  3  Ves.  T07,  per  Lord  Alvanley ;  S.  C.  5  Yes.  315,  per  Lord 
Loughborough. 

{q)  i.  e.  A  will  executed  in  conformity  with  section  5.  Note  that  Crooke  v. 
Brooking,  2  Yern.  50,  106,  was  before  the  Statute  of  Frauds. 

(r)  Ambrose  v.  Ambrose,  1  P.  W.  321 ;  Crop  v.  Norton,  9  Mod.  233. 

(s)  Bellamy  v.  Burrow,  Rep.  t.  Talb.  97. 

(t)  Forster  v.  Hale,  3  Yes.  696;  S.  C.  5  Ves.  308;  Morton  v.  Tewart,  2  Y.  &  C. 
Ch.  Ca.  67;  Bentley  v.  Mackay,  15  Beav.  12;  Smith  t.  Wilkinson,  cited  3  Yes. 
705 ;  O'Hara  v.  O'Neill,  7  B.  P.  C.  227  ;  and  see  Gardner  v.  Rowe,  2  S.  &  S.  354. 

(?/)  Hampton  v.  Spencer,  2  Yern.  288 ;  Nab  v.  Nab,  10  Mod.  404  ;  Cottington  v. 
Fletcher,  2  Atk.  155  ;  Ryall  v.  Ryall,  1  Atk.  59,  per  Lord  Hardwicke;  Wilson  v. 
Dent,  3  Sim.  385.  A  bill  differs  from  an  answer,  as  it  is  not  sif/ned  by  the  party. 
See,  however,  Butler  v.  Portarlington,  1  Conn.  &  Laws.  1. 

(v)  Moorcroft  v.  Dowding,  2  P.  W.  314. 

(iv)  Deg  V.  Deg,  2  P.  W.  412. 

(x)  Gardner  v.  Rowe,  2  S.  &  S.  346;  S.  C.  affirmed.  5  Russ.  258. 


122 


LEW  IN    ON    THE    LAW    OF    TRUSTS,    ETC. 


Plymoutli,  who  *paid  the  purchase-money  himself,  and  raised  it 
[*^^]  by  a  mortgage  of  his  property.  Two  years  afterwards,  Lord 
Windsor  raised  the  same  sum  by  a  mortgage  of  Breedon  and  Broms- 
grove,  and  paid  it  to  Lord  Plymouth,  who  signed  a  receipt  for  it.  Lord 
Plymouth  devised  Bromsgrove  for  payment  of  his  debts,  but  it  was  held 
that  a  trust  for  Lord  Windsor  was  sufficiently  proved  within  the  Statute 
of  Frauds.  Creditors,  the  court  said,  are  favourites,  but  we  must  not 
pay  them  out  of  other  men's  estates ;  nor,  as  Justice  Twisten  was  wont 
to  say,  steal  leather  to  mahe  poor  men  shoes. {>/) 

But  with  regard  to  letters  and  loose  acknowledgments  of  that  kind, 
the  court  expects  demonstration  that  they  relate  to  the  subject-matter  ;(s) 
nor  will  the  trust  be  executed  if  the  precise  nature  of  the  trust  cannot 
be  ascertained  ;{a)  and  if  the  trust  be  established  on  the  answer  of  the 
trustee,  the  terms  of  it  must  be  regulated  by  the  whole  answer  as  it 
stands,  and  not  be  taken  from  one  part  of  the  answer  to  the  rejection 
of  another  ■,[b)  and  the  plaintiff,  if  he  read  the  answer  in  proof  of  the 
trust,  must  at  the  same  time  read  from  it  the  particular  terms  of  the 
trust.(c)  When  the  trust  is  manifested  and  proved  by  letters,  parol  evi- 
dence may  be  admitted  to  show  the  position  in  which  the  writer  then 
stood,  the  circumstances  by  which  he  was  surrounded,  and  the  degree  of 
weight  and  credit  to  be  attached  to  the  letters,  independently  of  any 
question  of  construction. (f?) 

It  will  be  observed,  that  the  words  of  the  statute  require  the  writing 
to  be  signed  ;[e)  and  not  only  the  fact  of  the  trust,  but  also  the  terms  of 
it,  must  be  supported  by  evidence  under  signature ;(/)  but,  as  in  the 
analogous  case  of  agreements  under  the  fourth  section  of  the  act,((7)  the 
terms  of  the  trust  may  be  collected  from  a  paper  not  signed,  provided 
r*PK-i  such  paper  *can  be  clearly  connected  with  and  is  referred  to 
L  J  by,  the  writing  that  is  singed. (A)  The  signature  must  be  by 
the  party  "Vfho  is  by  law  enabled  to  declare  such  trust."  It  has  been 
occasionally  contended,  that  by  this  description  is  meant  the  person 
seised  or  possessed  of  the  legal  estate  ;  but  it  has  been  decided  that  whe- 
ther the  property  be  real(i)  or  personal,(A-)  the  person  enabled  to  declare 
the  trust  is  the  owner  of  the  beneficial  interest,  and  who  has  therefore 
the  absolute  control  over  the  property,  the  holder  of  the  legal  estate 
being  a  mere  instrument  or  conduit-pipe. (?) 

(y)  Plymouth  v.  Hickman,  2  Vern.  167. 
(z)  Forster  v.  Hale,  3  Ves.  708,  per  Lord  Alvanley. 

(a)  Forster  v.  Hale,  3  Ves.  707,  per  Lord  Alvanley;  Morton  v.  Tewart,  2  Y.  & 
C.  Ch.  Ca.  80,  per  Sir  J.  L.  K.  Bruce. 

{h)  Hampton  v.  Spencer,  2  Vern.  288  ;  Nab  v.  Nab,  10  Mod.  404. 

(c)  Freeman  v.  Tatham,  5  Hare,  329. 

id)  Morton  v.  Tewart,  2  Y.  &  C.  Ch.  Ca.  67,  see  77. 

\e)  See  Denton  v.  Davis,  18  Ves.  503. 

(/)  Forster  v.  Hale,  3  Ves.  707,  per  Lord  Alvanley. 

(^r)  See  Vend.  &  Purch.  ch.  3,  s.  2. 

(A)  Forster  v.  Hale,  3  Ves.  696.  (?)  Tierney  v.  Wood,  19  Beav.  330. 

[k)  Bridge  v.  Bridge,  16  Beav.  315;  ex  parte  Pye,  18  Ves.  140,  &c. 

(Zj  See  Donohoe  v.  Conrahy,  2  Jones  &  Lat.  688. 


FORMALITIES    REQUIRED    TO    CREATE    A    TRUST.    123 


SECTION  III. 

OF   THE    STATUTES   OP   WILLS. 

By  the  fifth  section  of  the  Statute  of  Frauds(»i)  all  devises  of  lands  are 
required  to  be  in  writing  and  signed  by  the  testator,  or  by  some  person 
in  his  presence  and  by  his  direction,  and  to  be  attested  or  subscribed  in 
his  presence  by  three  witnesses;  and  by  the  nineteenth  section,  all  bequests 
of  personal  estate  are  required  to  be  in  writing,  with  the  exception  of 
certain  specified  cases  in  which  nuncupative  wills  are  allowed. 

To  trace  the  operation  of  these  enactments  (»)  we  must  bear  in  mind 
that  the  absolute  owner  of  property  combines  in  himself  both  the  legal 
and  equitable  interest,  and  when  the  legislature  enacts  that  no  devise  or 
bequest  of  property  shall  be  valid  without  certain  ceremonies,  a  testator 
cannot  by  an  informal  instrument  afi'ect  the  equitable,  any  more  than 
the  legal,  estate,  for  the  one  is  a  constituent  part  of  the  ownership  as 
much  as  the  other.     Thus  a  person  cannot  but  by  a  will  duly  signed  and 
attested,  give  a  sum  of  money  originally  and  primarily  out  of  land,  for 
the  charge  is  a  part  of  the  land,  and  to  be  raised  out  of  it  by  sale  or 
mortgage  ;(o)  and  if  a  testator  by  will  duly  signed  and  attested  give  lands 
to  A.  and  his  heirs  *<'  upon  trust,"  but  without  specifying  the  r  ^qq  -i 
particular  trust  intended,  and  then  by  a  paper,  not  duly  signed  and  L         J 
attested  as  a  will  or  codicil,  declare  a  trust  in  favour  of  B.,  the  benefi- 
cial interest  under  the  will  is  a  part  of  the  original  ownership,  and  can- 
not be  passed  by  the  informal  paper,  but  will  descend  to  the  heir-at- 
law.(p)     Again,  if  a  legacy  be  bequeathed  by  a  will,  in  writing,  to  A. 
"  upon  trust,"  and  the  testator,  by  parol,  express  an  intention  that  it 
shall  be  held  by  A.  upon  trust  for  B.,  such  a  direction  is  in  fact  a  testa- 
mentary disposition  of  the  equitable  interest  in  the  chattel,  and  therefore 
void  by  the  statute,  which  imposes  the  necessity  of  a  written  will.     If  it 
be  said  that  such  expression  of  intention,  though  void  as  a  devise  or  be- 
quest, may  yet  be  good  as  a  declaration  of  trust,  and  therefore  that  where 
the  legal  estate  of  a  freehold  is  well  devised,  a  trust  may  be  engrafted 
upon  it  by  a  simple  note  in  writing  ;  and  where  a  chattel  personal  is  well 
bequeathed,  a  trust  of  it,  as  accepted  from  the  seventh  section  of  the 
Statute  of  Frauds,  may  be  raised  by  a  mere  parol  declaration ;  the  an- 
swer is,  that  a  wide  distinction  exists  between  testamentary  dispositions 
and  declarations  of  trust.     The  former  are  ambulatory  until  the  death 
of  the  testator,  but  the  latter  take  effect,  if  at  all,  at  the  time  of  the  exe- 
cution.    "The  deed,"  observed  Lord  Loughborough,  in  a  similar  case, 
"  is  built  on  the  will ;  if  the  will  was  destroyed,  the  deed  I  should  consider 
absolutely  gone ;  the  will  without  the  deed  is  incomplete,  and  the  deed 
without  the  will  is  a  nullity."(5)     And  Mr.  Justice  Buller  observed,  "  A 

(w)   29  Car.  2,  c.  3. 

(?i)  The  statute  now  in  force  is  1  Vict.  c.  26,  but  the  cases  were  decided  on  the 
Statute  of  Frauds. 

(o)  See  Brudenell  v.  Boughton,  2  Atk.  2T2. 
(p)  See  Adlington  v.  Cann,  3  Atk.  151. 
(y)  Habergham  v.  Vincent,  2  Ves.  jun.  209. 


124       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

deed  must  take  place  upon  its  execution,  or  not  at  all ;  it  is  not  necessary  for 
a  deed  to  convey  an  immediate  interest  in  possession,  but  it  must  take  place 
as  passing  the  interest  to  be  conveyed  at  tlie  execution  ;  but  a  will  is  quite 
the  reverse,  and  can  only  operate  after  death."(r)  We  may  therefore 
safely  assume,  as  an  established  rule,  that  if  the  intended  disposition  be 
of  a  testamentary  character,  and  not  to  take  effect  in  the  testator's  life- 
time, but  ambulatory  until  his  death,  such  disposition  is  inoperative  un- 
'  -,  less  it  be  declared  in  writing  in  ^strict  conformity  with  the  sta- 
t  **^'  J  tutory  enactments  regulating  devises  and  bequests. (s) 

Lord  Northington  once  enunciated  the  proposition,  that  a  writing 
signed  by  a  party  who  had  power  to  make  a  trust,  declaring  the  trust 
upon  the  will,  is  good  though  such  writing  be  not  attested  by  three  wit- 
nessess  according  to  the  solemnities  of  the  Statute  of  Frauds ;(;)  but  this 
is  a  solitary  dictum,  and  has  been  long  overruled  by  the  highest  autho- 
rities. (?() 

Inchiquin  v.  rrench(i')  may  be  mentioned,  as  the  case  has  been  mis- 
taken. A  testator  devised  all  his  real  estate,  charged  with  debts  and 
legacies,  in  strict  settlement,  and  gave  a  legacy  of  20,000/.  to  Sir  William 
Wyndham  ;  by  a  deed  poll  of  even  date  with  his  will,  the  testator  declared 
that  the  20,000?.  was  given  to  Sir  William  Wyndham  upon  trust  for 
Lord  Clare.  "The  deed  poll,"  adds  Mr.  Cox,  the  reporter,  "  does  not 
appear  to  have  been  proved  as  a  testamentary  paper  j"  and  according  to 
the  same  report,  Lord  Hardwicke  decreed  that  the  legacy  of  20,000?. 
given  to  Sir  William  Wyndham,  and  by  the  codicil  declared  to  be  in  trust 
for  Lord  Clare,  was  a  subsisting  legacy.  It  might  be  inferred  from  this 
statement,  that  Lord  Hardwicke  admitted  the  deed  poll  as  a  declaration 
of  trust;  but  it  will  be  observed  that  he  calls  it  a  codicil,  and  from  the 
report  of  the  same  case  in  Ambler(tc)  we  learn  the  facts,  viz.,  that  Lord 
Clare  was  out  of  the  jurisdiction,  and  Lord  Hardwicke  declined  to 
entertain  the  question  as  to  Lord  Clare's  right  in  his  absence ;  but  the 
counsel,  for  all  parties,  desiring  his  lordship  to  determine  whether, 
r*PQ  -1  assuming  the  legacy  to  be  valid,  it  was  to  be  paid  out  of  *the 
L  -I  real  or  personal  estate,  his  lordship  held,  that  as  the  will  con- 
tained a  general  charge  of  legacies  and  the  gift  by  the  codicil,  though 
not  attested  by  the  Statute  of  Frauds,  was  a  legacy,  it  was  raisable  pri- 

(r)  Habergbam  v.  Vincent.  2  Yes.  jun.  230. 

(«)  In  Metbam  v.  Devon,  1  P.  W.  529,  a  testator  directed  his  executors  to  pay 
3000Z.  as  be  sbould  by  deed  appoint,  and  subsequently  the  testator  by  a  deed  ap- 
pointed the  3000^.  to  the  children  of  his  son  by  Mrs.  H.,  and  the  Court  established 
the  gift  to  the  children  on  the  ground  that  the  deed  referred  to  the  will,  and  was 
part  thereof  and  in  the  nature  of  a  codicil.  It  does  not  appear  in  this  case  whe- 
ther the  deed  had  been  proved  with  the  will,  but  undoubtedly  it  might  have  been, 
as,  though  a  deed  in  form,  it  was  of  a  testamentary  character.  If  the  deed  was 
not  proved,  or  assumed  to  have  been  proved,  as  part  of  the  will,  it  is  difficult  to 
find  any  principle  upon  which  the  case  can  be  supported  from  the  brief  statement 
of  it  in  the  report. 

{t)  Boson  V.  Statham,  1  Ed.  514. 

(m)  Adlington  v.  Cann,  3  Atk.  151  ;  Muckleston  v.  Brown,  6  Ves.  67  ;  Stickland 
T.  Aldridge,  9  Ves.  519  :  and  see  Puleston  v.  Puleston,  Finch.  312,  Jenk.  3  Cent. 
Ca.  26. 

{v)  1  Cox.  1.  („,)  Amb.  p.  33. 


FORMALITIES    REQUIRED    TO    CREATE    A    TRUST.     125 

marily  out  of  the  personal  estate,  and  then  out  of  the  real  estate.  This 
was  the  only  point  determined  by  him. 

If  a  testator,  hy  his  will,  devise  an  estate,  and  the  devisee,  so  far  as 
appears  on  the  face  of  the  will,  is  intended  to  take  the  beneficial  interest, 
and  the  testator  leave  a  declaration  of  trust  not  duly  attested,  and  not 
communicated  to  the  devisee  and  assented  to  by  him  in  the  testator's 
lifetime,  the  devisee  is  the  party  entitled  both  to  the  legal  and  beneficial 
interest;  for  the  estate  was  well  devised  by  the  will,  and  the  informal 
declaration  of  trust  is  not  admissible  in  evidence. (x)  This  doctrine,  of 
course,  does  not  interfere  with  the  known  rule,  that  a  testator  may,  hy 
his  will,  refer  to  and  incorporate  therein,  any  document  which  at  the 
date  of  the  will  has  an  actual  existence,  and  is  thus  made  part  of  the 
will. 

Should  the  testator  devise  the  estate  in  such  language  that  the  will 
passes  the  legal  estate  only  to  the  devisee,  and  manifests  an  intention  of 
not  conferring  the  equitable,  in  short,  stamjys  the  devisee  with  the  charac- 
ter of  trtistee,  and  yet  does  not  define  the  particular  trusts  upon  which  he 
is  to  hold ;  in  this  case,  no  paper  not  duly  attested  (except  of  course 
papers  existing  at  the  date  of  the  will,  and  incorporated  by  reference) 
will  be  admissible  to  prove  what  were  the  trusts  intended.  Nor  will  the 
devisee  be  allowed  to  retain  the  beneficial  interest  himself;  but  while 
the  legal  estate  passes  to  him,  the  equitable  will  result  to  the  testator's 
heir-at-law. (y)  And  under  the  present  Statute  of  Wills,  the  law  is  the 
same  in  reference  to  a  bequest  of  personal  estate.  (2) 

And  if  it  appear  by  the  will  that  the  devisee  was  meant  to  *be  ^  ^^q  -. 
a  trustee,  and  not  to  take  the  beneficial  interest,  parol  evidence  l  J 
cannot  be  received  in  support  of  a  contrary  intention,  for  this  would  be 
not  to  rebut  an  equitable  presumption,  but  to  act  upon  parol  testimony 
in  contradiction  to  a  written  instrument. (o) 

We  now  proceed  to  notice  two  exceptions  to  the  general  rule,  that  a 
trust  cannot  be  created  by  devise  or  bequest,  except  with  the  formalities 
required  by  the  enactments  relating  to  wills. 

The  first  exception  existing,  however,  in  the  case  only  of  testamentary 
instruments  executed  before  Jan.  1,  1838,(Z>)  was,  that  a  testator  might, 
by  a  will  duly  attested,  charge  his  real  estates  with  debts  and  legacies ; 
and  then  a  debt  subsequently  contracted,  or  a  legacy  given  by  a  codicil, 
though  not  attested,  would  under  the  general  charge  contained  in  the 

(x)  Adlington  v.  Cann,  3  Atk.  141 ;  and  see  Stickland  v.  Aldridge,  9  Ves.  519 ; 
and  observations  of  Sir  J.  L.  K.  Bruce,  in  Briggs  v.  Penny,  3  De  Gex  and  Sm. 
p.  547. 

(y)  Muckleston  v.  Brown,  6  Ves.  52.  Bisliop  v.  Talbot,  as  cited  ib.  GO,  was  a 
devise  to  trustees  in  trust,  but  on  consulting  the  Reg.  Lib.  it  appears  there  was  no 
notice  of  the  trust  upon  the  will,  Reg.  Lib.  1772,  A.  fol.  137.  In  Boson  v.  Statham, 
1  Ed.  508,  the  devisees  were  described  as  trustees,  but  Ibis  circumstance  was  not 
adverted  to  by  the  counsel  or  the  court. 

(z)  Johnson  v.  Ball,  5  De  Gex  &  Sm.  85. 

(a)  It  should  be  borne  in  mind  that  the  point  may  yet  occur  in  practice  in  re- 
ference as  well  to  testators  dying  after  as  those  dving  before  1838. 

(b)  See  Langham  v.  Sandford,  17  Ves.  442;  S.  C.  19  Ves.  643;  Rachfield  v. 
Careless,  2  P.  W.  158  ;  Golding  v.  Yapp,  5  Madd.  59;  White  v.  Evans,  4  Ves.  21; 
Walton  V.  Walton,  14  Ves.  322. 

January,  1858.— 9 


126       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

formal  instrument,  be  raisable  out  of  tlie  real  estate.  The  reason  is, 
that  debts  and  legacies  being  primarily  payable  out  of  the  personal  estate, 
are  a  fluctuating  charge  upon  the  real  estate.  The  lands  only  are  affected 
to  the  extent  of  the  deficiency  of  the  personalty,  and  the  amount  of  the 
latter  must  be  uncertain  up  to  the  time  of  the  testator's  death.  The 
testator,  by  contracting  debts  or  giving  legacies  by  an  unattested  codicil, 
exercised  the  power  which  the  law  allowed  him  of  reducing  the  personal 
estate ;  and  as  regards  the  Statute  of  Frauds,  it  was  conceived  to  be 
immaterial  whether  the  testator  diminished  the  personal  assets  in  this 
or  any  other  manner.(c)  But  the  exception  does  not  extend  to  a  will  so 
worded  as  to  amount  to  a  reservation  of  a  power  to  charge  by  unattested 
codicil  j(c?)  nor.  it  is  conceived,  to  a  charge  by  will  of  lands  with  debts 
and  legacies,  and  a  subsequent  gift  by  unattested  codicil  of  legacies  to 
be  raised  exclusively/  out  of  the  real  estate ;  this  last  amounting  to  the 
devise  of  a  direct  interest  in  land. 

r  *~n  1  *Another  exception  to  the  rule,  that  parol  trusts  cannot  be 
L  J  declared  upon  a  will,  is  in  the  case  of  fraud.  The  court  will 
never  allow  a  man  to  take  advantage  of  his  own  wrong,  and  therefore  if 
an  heir,  or  devisee,  or  legatee,  or  next  of  kin,  contrive  to  secure  to  him- 
self the  succession  of  the  property  through  fraud,  the  person  to  whom, 
but  for  the  intervention  of  fraud,  the  property  would  have  passed,  may 
affect  the  conscience  of  the  legal  holder,  and  convert  him  into  a  trustee, 
a»d  compel  him  to  execute  the  disappointed  intention. 

Thus  if  the  owner  of  an  estate  hold  a  conversation  with  the  heir,  and 
be  led  by  him  to  believe  that  if  the  estate  be  suffered  to  descend,  the 
heir  will  make  a  certain  provision  for  the  mother,  wife,  or  child  of  the 
testator,  a  court  of  equity,  notwithstanding  the  Statute  of  Wills,  will 
oblige  the  heir  to  make  a  provision  in  conformity  with  the  express  or 
implied  engagement;  for  the  heir  ought  to  have  informed  the  testator 
that  he,  the  heir,  would  not  hold  himself  bound  to  give  effect  to  the 
intention,  and  then  the  testator  would  have  had  the  opportunity  of  inter- 
cepting the  right  of  the  heir  by  making  a  will.(e) 

So  if  a  father  devises  to  his  youngest  son,  who  promises  that  if  the 
estate  be  given  to  him  he  will  pay  10,000/.  to  the  eldest  son,  the  court, 
at  the  instance  of  the  eldest  son,  will  compel  the  youngest  son  to  disclose 
what  passed  between  him  and  the  testator,  and  if  he  acknowledge  the 
engagement,  though  he  pray  the  benefit  of  the  statute  in  bar,  he  will  be 
a  trustee  for  the  eldest  son  to  the  extent  of  10,000/. (/J 

And  so,  generally,  if  a  testator  devises  an  estate  to  A.  the  henejicial 
owner  upon  the  face  of  the  will,  but  upon  the  understanding  between 
the  testator  and  A.  that  the  devisee  will  as  to  a  part  or  even  the  entirety 
of  the  beneficial  interest  hold  upon  any  trust  which  is  lawful  in  itself, 

(c)  Haberghani  v.  Vincent,  2  Ves.  jun.  23G. 

S*^}  J°,f  !•  Cunninghame,  12  Ves.  29  ;  Swift  v.  Nasli,  2  Keen,  20. 
T  ^\  ^, ,        J-  ^^"''^'  ^  ^''°-  ^^-  "'21 ;  Stickland  v.  Aldridge.  9  Ves.  519,  per 
Lord  Elden  ;  Harris  v.  Horwell,  Gilb.  Eq.  Rep.  11.     As  to  tlie  limits  of  the  juris- 
aiciion  ot  courts  of  equity,  in  cases  of  devises  or  bequests  obtained  bv  fraud, 
see  Hindson  V.  Weatlierill,  5  De  Gex,  M.  k  G.  301,  and  the  cases  there  collected. 

(/)  btickland  v.  Aldridge,  9  Ves.  519. 


FORMALITIES    REQUIRED    TO    CREATE    A    TRUST.     127 

iu  favour  of  B.,  the  court,  at  the  instance  of  B.,  will  affect  the  con- 
science of  A.,  and  decree  him  to  execute  the  testator's  intention. (^) 

*It  often  happens  that  a  proposed  devisee  enters  into  an  r-^.^-,-, 
engagement  with  the  testator  in  his  lifetime  to  execute  a  secret  •-  -I 
trust  of  an  unlawful  character,  one  which  the  policy  of  the  law  does  not 
allow  to  be  created  by  will.  In  this  case  the  court  will  not  suffer  the 
devisee  to  profit  by  his  fraud,  but  on  proof  of  the  fact  raises  a  resulting 
trust  in  favour  of  the  testator's  heir-at-law.  If,  therefore,  a  testator 
devise  an  estate  in'words  carrying  upon  the  face  of  the  will  the  beneficial 
interest,  and  obtain  a  promise  from  the  devisee  that  he  will  hold  the 
estate  upon  trust  for  a  charitable  purpose,  the  heir-at-law,  as  entitled  to 
a  resulting  trust,  may  file  a  bill  against  the  devisee,  and  compel  him  to 
answer  whether  there  existed  any  such  understanding  between  him  and 
the  testator ;  and  if  the  defendant  acknowledge  it,  he  will  be  decreed  a 
trustee  for  the  plaintiff,  and  to  convey  the  estate  to  him  accordingly. (A) 
"  Surely,"  said  Lord  Eldou,  "  the  law  will  not  permit  secret  engage- 
ments to  evade  what,  upon  grounds  of  public  policy,  is  established  ?  Is 
the  court  to  feel  for  individuals,  and  to  oblige  persons  to  discover  in 
particular  instances,  and  not  feel  for  the  whole  of  its  own  system,  and 
compel  a  discovery  of  frauds  that  go  to  the  roots  of  that  system  ?  There 
is  surely  a  stronger  call  upon  the  justice  of  the  court  to  say,  upon  u 
private  bargain,  between  the  testator  and  those  who  are  to  take  appa- 
rently under  the  will,  which  is  to  defeat  the  whole  of  the  provisions  and 
policy  of  the  law,  that  they  shall  be  called  on  to  say  whether  they  took 
the  estate,  as  they  legally  may  not  do,  for  charitable  purposes."(») 

In  Bishop  v.  Talbot,(y)  a  testator  by  will  duly  attested  gave  p^-o  i 
*his  real  estate  to  A.  and  B.  in  fee,  and  by  a  memorandum  L  "^  J 
signed,  but  not  attested,  declared  certain  charitable  trusts.  A  bill  was 
filed  by  the  heir-at-law  against  the  devisees,  who  by  their  answer  insisted 
that  the  devise  was  not  upon  any  secret  trust,  nor  for  other  purposes 
than  what  appeared  on  the  will,  but  admitted  they  had  the  memorandum 
in  their  possession,  and  suhriiitted  the  effect  thereof  to  the  judgment  of 
the  court.  Sir  Thomas  Sewell  is  reported  to  have  said,  "  He  did  not 
think  the  principal  matter  would  be  the  validity  of  the  paper  writing : 
the  question  was,  what  would  be  the   effect  of  the  answer,  supposing 

(ff)  Kingsman  v.  Kingsman,  2  Yern.  559;  Drakeford  v.  Wilks,  3  Atk.  539; 
Barrow  v.  Green,  3  Yes.  152;  Marriot  v.  Marriot,  1  Strange,  G72,  per  Cur.;  Sea- 
grave  V.  Kirwan,  1  Beatt.  164,  per  Sh-  A.  Hart;  Leister  v.  Foxcroft,  cited  ib. : 
Chamberlaine  v.  Cliambcrlaine,  2  Eq.  Ca.  Ab.  43;  ib.  465;  Thynn  v.  Thjnn,  1 
Yern.  296;  Devenish  v.  Baines,  Free,  in  Ch.  p.  3:  Oldham  v.  Litcliford,  2  Vera. 
506;  same  case,  Freem.  284;  Reecli  v.  Kennigate.  Amb.  67;  S.  C.  1  Yes.  123; 
Newburgh  v.  Newburgb,  5  Madd.  366,  per  Sir  John  Leach;  Chamberlain  v.  Agar, 
2  Yes.  &  B.  259;  Nab  v.  Nab,  10  Mod.  Rep.  404;  Strode  v.  Winchester,  1  Dick! 
397 ;  S.  C.  stated  from  Reg.  Lib.  App.  No.  1 ;  and  see  Alison's  case,  9  Mod.  Rep. 
62  ;  Dixon  v.  Olmius,  1  Cox,  414. 

{h)  Adlington  v.  Cann,  Barn.  130  ;  King  v.  Lady  Portington,  1  Salk.  162  ; 
Muckleston  v.  Brown,  6  Yes.  52  ;  Stickland  v.  Aldridge,  9  Yes.  516;  and  see  At- 
torney-General V.  Duplessis,  Park.  144  ;  Russell  v.  Jackson,  10  Hare,  204 ;  Tee  v. 
Ferris,  2  Kay  &  J.  357  ;  Lomax  v.  Ripley,  3  Sm.  &  Gif.  48. 

(j)  Muckleston  v.  Brown,  6  Yes.  69. 

(./)  Cited  Muckleston  v.  Brown,  6  Yes.  60,  67;  Reg.  Lib.  A.  1772.  fol.  137.  A. 
1773,  fol.  686. 


128  LEWIN    ON    THE    LAW    OF    TKI'STS.    ETC. 

there  was  no  paper;  admitting  there  was  no  trust  for  charitable  purposes 
except  what  was  mentioned  in  the  answer,  this  was  a  sort  of  disclaimer 
upon  their  part,  and  the  question  was,  who  should  have  it  V  And  his 
honor  decreed  the  heir-at-law  to  be  entitled  to  a  resulting  trust.  "  Sir 
Thomas  Sewell,"  said  Lord  Eldon,  "  went  a  great  length  in  that  case. 
If  he  had  said  the  law  would  authorize  him  to  hold  the  memorandum  a 
sufficient  denotation  of  intention  that  the  devisees  should  be  trustees, 
the  difficulty  would  be,  how  he  came  to  read  the  momorandum.  But  he 
took  it  in  another  way,  that  as  they  set  forth  the  memorandum,  they 
admitted  the  purpose  of  the  testator,  and  put  it,  not  upon  the  effect  of 
the  memorandum,  vi  sua,  if  I  may  so  expi-ess  it,  but  as  taken  as  their 
admission.  I  doubt  whether  that  is  quite  correct  reasoning;  but  though 
Sir  Thomas  Sewell  might  be  wrong  in  the  fact  that  that  was  an  admission, 
his  opinion  is  an  authority  in  point  of  law,  that  if  there  was  an  admission 
he  would  execute  the  trust.  Then  it  comes  to  this,  that  the  doctrine  of 
the  court  is,  that  the  defendant  shall  answer  in  such  a  case ;  and  if  he 
answers  in  the  affirmative,  there  is  a  resulting  trust  for  the  heir."(^) 

In  a  recent  case(A  the  court  was  much  more  favourable  to  the  devisees 
in  the  construction  put  upon  this  act.  A  testator  devised  certain  free- 
holds to  four  persons  during  the  life  of  A.  for  their  own  use  and  benefit, 
and  three  of  them  at  the  same  time  signed  and  delivered  to  the  testator 
letters  of  acknowledgment  that,  although  the  estate  was  expressed  to  be 
devised  to  them  beneficially,  they  would  hold  the  same  upon  trust  for 
r*7m  ^^'i^li^n.  A  bill  was  filed,  by  two  of  the  trustees  who  had  signed 
L  -1  the  letters,  against  the  two  other  trustees,  the  alien  and  the 
crown,  in  the  absence  of  the  heir,  to  have  the  rights  of  all  parties  ascer- 
tained and  declared.  The  trustee  who  had  not  signed  an  acknowledg- 
ment did  not  admit  any  trust,  and  was  held  to  be  clearly  entitled  to  the 
beneficial  interest;  and  even  as  to  the  three  devisees  who  had  signed  the 
acknowledgment,  the  vice-chancellor  was  of  opinion  that  the  devisees 
had  so  signed  under  the  impression  that  the  trust  for  an  alien  was  good, 
and  that,  acting  under  a  misapprehension  in  that  respect,  they  were  not 
bound  by  the  letters  as  an  admission  of  trust.  The  court  therefore 
declared  that  all  four  devisees  was  beneficially  entitled. 

Where  a  devise  is  to  several  persons,  as  tenants  in  common,  it  may  be 
void  as  to  one  to  whom  the  testator's  unlawful  intention  was  communicated 
in  his  lifetime,  and  good  as  to  the  others  who  were  not  privies  to  the 
intention,  ^m) 

And  where  no  trust  is  imposed  by  the  will,  and  no  communication  was 
made  in  the  testator's  lifetime,  the  devise  will  be  good,  although  the 
devisee  may,  notwithstanding  the  absence  of  legal  obligation,  be  disposed 
from  the  bent  and  impulse  of  his  own  mind,  to  carry  out  what  he  believes 
to  have  been  the  testator's  wishes. («) 

Another  case  may  occur,  as  follows ; — A  devise  may  be  a  beneficial  one 
upon  the  face  of  a  will,  but  there  may  have  existed  an  understanding 

(k)  Muckleston  v.  Brown,  6  Ves.  68. 

(l)  Burney  v.  Macdonald,  15  Sim.  6. 

(m)  Tee  v.  Ferris,  2  Kay  &  J.  357. 

(«)  Wallgrave  v.  Tebbs',  2  Kay  &  J.  313  :  Lomax  v.  Ripley,  3  Sm.  &  Gif.  48. 


FORMALITIES    REQUIRED    TO    CREATE    A    TRUST.     129 

between  the  testator  in  his  lifetime  and  the  devisee,  that,  without  any 
particular  part  of  the  estate  being  specified,  such  portions  of  it  as  the 
devisee,  in  the  exercise  of  his  discretion,  might  think  proper,  should  be 
applied  to  a  charitable  purpose.  Under  such  circumstances  the  heir  of 
the  testator  would  have  a  right  to  interrogate  the  devisee  whether  he  has 
exercised  that  discretion,  and  to  call  for  a  conveyance  of  so  much  as  the 
devisee  may  have  made  subject  to  the  unlawful  purpose. fo) 

In  the  above  cases  it  is  not  a  sufficient  answer  to  a  bill  for  the  defend- 
ant to  say  that  the  secret  trust  is  not  for  the  plaintiif,  *for  thus  ^  ^_ .  ., 
the  devisee  makes  himself  the  judge  of  the  title.  The  trust  may  L  J 
be  for  a  charity,  and  if  so,  the  beneficial  interest  would  result  for  want 
of  a  lawful  intention,  or  the  equitable  interest  may,  on  some  other  ground, 
enure  to  the  heir  as  undisposed  of.(j^)  If  the  defendant  deny  the  trust 
by  his  answer,  the  fact  in  this  as  in  other  cases  of  fraud  may  be  esta- 
blished against  him  by  the  production  of  parol  evidence. (5') 

It  is  clear  that  if  a  devisee  enter  into  an  engagement  with  the  testator 
to  execute  an  unlawful  trust,  the  heir  may  file  a  bill,  and  claim  the  bene- 
ficial interest ;  but  suppose  the  devise  is  a  beneficial  one  upon  the  face  of 
it,  and  the  testator  communicates  his  will  to  the  devisee,  and  requests 
him  to  be  a  trustee  for  such  purposes  as  the  testator  shall  declare,  which 
the  devisee  undertakes  to  do,  but  the  testator  afterwards  dies  without 
having  expressed  any  trust,  it  seems  that  in  this  case  also  the  devisee  will 
not  be  allowed  to  take  the  beneficial  interest,  but  the  heir-at-law  will  be 
entitled. 

Thus  in  Mucklestou  v.  Brown(r)  the  testator  applied  to  three  persons 
to  act  as  trustees  for  the  execution  of  certain  trusts,  which  he  intended 
to  declare,  and  upon  their  undertaking  the  trust,  the  testator  devised  all 
his  real  estate  to  them,  subject  only  to  the  payment  of  his  debts  and 
legacies.  The  testator  died  without  having  declared  any  trust  as  he  had 
proposed.  Upon  a  bill  filed  by  the  heir,  Lord  Eldon  was  of  opinion, 
though  very  guardedly  expressed,  that  the  devisee  was  bound  to  answer. 
He  observed,  "  I  am  not  quite  prepared  to  say  it  is  clear  that  if  the  tes- 
tator made  the  devise,  meaning,  at  the  time,  thereafter  duly  to  declare 
trusts,  and  it  happened  that  he  did  not  declare  any,  that  sort  of  case 
would  not  be  within  the  equity  of  this  court,  and  whether,  if  they 
admitted  his  will  was  made  upon  an  undertaking  that  they  would  execute 
such  trusts,  the  heir  would  not  have  a  right  to  say  no  trust  was  duly 
declared,  the  purpose  therefore  failed,  and  the  trust  results  by  law  to 
him,  not  upon  the  intention,  but  upon  the  ground  that  there  is  no  inten- 
tion, and  he  is  entitled  to  avail  himself  of  that." 

*  Another  case,  distinct  from  all  the  preceding,  is  where  a  tes-  i-  ^-r -1 
tator  devises  an  estate  to  persons  as  trustees,  but  no  trusts  are  L  J 
declared  by  ,the  will,  so  that  the  equitable  interest  would,  upon  the  face 
of  the  instrument,  result  to  the  heir-at-law,  and  the  testator  informs  the 

(0)  Muckleston  v.  Brown,  6  Ves.  69. 

Ip)  Newton  v.  Pelham,  citL'd  Boson  a".  Statham,  1  Ed.  514. 
(q)  Kingsman  v.  Kingsman,  2  Ver.  599  ;  Pring  v.  Pring,  2  Ver.  99. 
(;•)  6  Ves.  52.     See  too  the  obseryatious  of  V.  C.  (now  L.  J.)  Turner,  in  Rus- 
sell V.  Jackson,  10  Hare,  p.  214. 


130       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

devisees  that  his  intention  in  making  the  devise  was,  that  they  should 
hold  the  estate  in  trust  for  certain  persons, -wh^ch  the  devisees  undertake 
to  do.  Will  the  court,  under  such  circumstances,  compel  the  devisee  to 
execute  the  parol  intention,  or  will  the  equitable  interest  result  to  the 
heir  ?  In  favour  of  the  parol  trust,  it  will  be  argued  that  the  testator  left 
his  will  in  the  form  in  which  it  appears,  under  the  impression  that  his 
object,  verbally  communicated,  would  be  carried  out,  and  that  the  trust 
can  therefore  be  supported,  on  the  ground  of  mistake  in  himself,  or 
fraud  in  the  devisee  in  not  apprising  the  testator  that  the  trust  could  not 
be  executed.  To  this  the  answer  is,  that,  upon  the  face  of  the  will, 
the  equitable  interest  results  to  the  heir-at  law,  and  that,  if  the  testator 
had  not  disposed  of  the  equitable  interest,  as  required  by  the  statute,  the 
court  cannot  make  a  will  for  him,  on  the  plea  of  mistake  or  fraud  :(.s) 
that  the  court  has  interfered  in  the  case  of  fraud  in  those  instances  only 
where  the  devisee,  taking  the  beneficial  interest  under  the  will,  was  the 
contriver  of  the  fraud,  and,  as  no  man  may  take  advantage  of  his  own 
wrong,  the  court  compelled  the  devisee  to  execute  the  intention  fraudu- 
lently intercepted]  but  in  the  case  supposed,  the  legal  estate  only  is  in  the 
devisee,  while  the  beneficial  interest  is  in  the  heir-at-law,  who  is  wholly 
disconnected  from  the  fraud.  What  jurisdiction,  therefore,  has  the  court 
to  act  upon  the  conscience  of  the  heir,  to  deprive  him  of  that  estate  which 
has  not  been  devised  away  according  to  the  Statute  of  Wills  ?  and  how  can 
the  trustees  for  the  heir  be  held  to  be  trustees  for  another  in  the  absence 
of  all  fraud  on  the  part  of  the  heir  ?  It  would  seem,  upon  principle,  that 
where  a  trust  results  upon  the  face  of  the  will,  the  circumstance  of  an 
express  or  implied  promise  on  the  part  of  the  devisee  to  execute  a  certain 
trust  is  not  a  sufiicient  ground  for  authorizing  the  court  to  execute  the  trust 
r  ^-a  -1  ^^  against  the  heir-at-law.  *The  point  might  have  arisen  in  each 
L  -I  of  the  four  following  cases,  but  except  in  the  latest  of  the  four, 
it  does  not  appear  to  have  been  taken. 

In  Pring  v.  Pring,(i?)  a  man  by  his  will  appointed  A.,  B.,  and  C.  his 
executors  in  trust,  and  gave  them  a  legacy  of  20/.  apiece :  the  wife 
brought  her  bill  against  the  executors,  alleging  that  the  defendants  had 
been  made  executors  in  trust  for  her.  Two  of  the  defendants  admitted 
the  trust ;  but  the  third  denied  it,  and  insisted  that  at  all  events,  if  the 
will  stamped  them  as  trustees,  it  must  be  taken  to  be  a  trust  not  only  for 
the  wife  but  also  for  the  next  of  kin.  The  will  declaring  that  the  exe- 
cutors were  only  in  trust,  and  not  declaring  for  whom,  the  court  held 
that  the  person  might  be  averred;  and  two  of  the  executors  having,  by 
their  answer,  confessed  the  trust,  and  it  being  likewise  fully  proved  that 
it  was  the  intent  of  the  testator,  and  that  he  declared  it  a  trust  for  his 
wife,  the  court  decreed  the  trust  for  the  plaintifi",  with  costs  against  the 
adversary  defendant.  It  is  presumed  that  in  this  case  a  communication 
had  passed  between  the  testator  and  the  executors,  and  that  if  a  trust 
had  not  resulted  upon  the  face  of  the  will,  the  court,  on  the  ground  of 
traud,  might  have  compelled  the  executors  to  give  the  beneficial  interest 
which  they  took  under  the  will,  to  the  person  to  whom  they  had  promised 

(s)  Newburgh  v.  Newburgh,  5  Madd.  364.  It)  2  Vern.  99. 


FORMALITIES    REQUIRED    TO    CREATE    A    TRUST.     131 

it  in  the  testator's  lifetime.  "Whether  the  court  was  right,  as  a  trust 
appeared  upon  the  will,  in  giving  away  the  beneficial  interest,  not  of  the 
fraudulent  executors,  but  of  the  innocent  next  of  kin,  appears  open  to 
question. 

In  Crooke  v.  Brooking,(«)  a  testator  by  his  will  gave  to  his  brothers 
Simon  and  Joseph,  1500?. /oy  such  uses  as  he  had  declared  to  them,  and 
by  them  not  to  be  disclosed ;  charging  them  that  they  would  perform 
the  same,  as  they  would  answer  it  at  God's  tribunal.  The  money  was 
paid  to  Simon  and  Joseph ;  and  Simon,  in  a  letter  to  Joseph,  acknow- 
ledged the  trusts  to  have  been  for  Ann  Crew  for  life  and  then  for  her 
sister's  children.  Joseph  died,  and  one  of  the  children  filed  his  bill 
against  Simon  for  an  execution  of  the  trust,  which  the  court  decreed  ; 
but  the  question  argued  appears  to  have  been  *not  between  the  r  :)=-■--  -i 
plaintiff  and  the  next  of  kin  whether  a  valid  trust  was  created,  L  J 
but  as  the  money  had  been  actually  paid  to  the  trustees,  what  class  of 
children  were  the  cesfuis  que  trust,  on  the  assumption  that  the  trust  itself 
was  valid.     And  besides,  this  was  a  case  before  the  Statute  of  Frauds. 

In  the  more  recent  case  of  Smith  v.  Attersoll(i;)  a  testator  by  his  will 
gave  fifty  commercial  dock  shares  to  his  two  sons,  Joseph  and  John,  who 
were  also  his  executors,  in  trust  for  certain  jmrposcs  which  the  will 
stated  had  been  fully  explained  to  them.  On  the  same  day  on  which 
the  will  was  executed,  Joseph  and  John  signed  an  acknowledgment  that 
they  would  hold  the  shares  upon  trust  for  the  testator's  six  natural  chil- 
dren. The  acknowledgment  was  not  proved  as  a  testamentary  paper. 
The  bill  was  filed  by  one  of  the  six  children  to  have  the  trusts  of  the 
dock  shares,  as  expressed  in  the  acknowledgment,  carried  into  execution. 
The  executors  by  their  answer  admitted  the  trust.  It  does  not  appear 
that  the  testator's  next  of  Mn  were  made p)ar ties.  Lord  Gifibrd  decreed 
the  execution  of  the  trusts  on  the  ground  that  the  paper  writing,  though 
not  testamentary,  was  an  admission  of  the  trust  by  the  executors ;  but 
the  observation  occurs  that  the  executors  had  not  the  beneficial  interest 
in  themselves,  and  therefore  no  admission  by  them  could  give  a  title  to 
another.  Several  cases  were  cited  by  the  court  in  support  of  the  deci- 
sion, but  all  of  them,  except  Crooke  v.  Brooking,  mentioned  above,  are 
distinguishable. (w)  It  is  a  very  material  circumstance  that  the  question 
was  litigated  between  the  executors  and  a  cestui  que  trust  only  in  the 
absence  of  the  next  of  kin,  to  whom,  in  fact,  the  equitable  interest  had 
resulted. 

In  Podmore  v.  Gunning,(x)  the  principal  question  litigated  was 
whether  the  testator  had  in  fact  stamped  the  devisee  with  *the  r  *y<;j  -i 
character  of  a  trustee,  so  that  the  equitable  interest  upon  the  L  J 
face  of  the  instrument  resulted  ;    and,  in  the  event  of  the  court  being  of 

{u)   2  Vern.  50  and  107.  (i')   1  Russ.  2C6. 

{iv)  As  Jones  v.  Habbs,  Gilb.  Eq.  Rep.  146,  but  there  the  money  passed,  and 
the  parol  trust  was  declared  in  the  life-time  of  the  testator.  Inchiquin  v.  French. 
1  Cox,  1,  but  this  case  was  mistaken,  see  Ambler's  Rep.  p.  33,  and  the  observa- 
tions, ante,  p.  67.  Metham  v.  Devon,  1  P.  W.  520,  but  the  court  treated  the  deed 
as  testamentary  and  in  the  nature  of  a  codicil;  and  no  doubt  it  might  have  been 
proved  as  such,  even  if  it  had  not  been  proved  already. 

if)   7  Sim.  644. 


132  LEAVIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

that  opinion^  a  contest  would  have  arisen  between  the  heir  and  next  of 
kin  on  the  one  hand,  and  the  secret  cestuis  que  trust  on  the  other. 

In  the  case  under  consideration,  Sir  Thomas  Staines  devised  his  resi- 
duary estate  to  his  wife,  her  heirs,  administrators,  and  assigns,  "  having 
a  perfect  confidence  that  she  would  act  up  to  the  views  which  he  had 
communicated  to  her  in  the  ultimate  disposal  of  his  property  after  his 
decease." (y)  A  bill  was  filed  by  the  two  natural  daughters  of  Sir 
Thomas,  alleging  that  Sir  Thomas,  at  the  time  of  making  his  will 
had  expressed  to  Lady  Staines  his  desire  of  providing  for  the  plain- 
tiffs, and  that  Lady  Staines  had  promised  that  if  the  residuary  estate 
were  devised  to  her  she  would  execute  his  intention  in  the  plain- 
tiffs' favour.  The  vice-chancellor  was  of  opinion  that  the  language 
of  the  will  did  not  declare  Lady  Staines  to  be  a  trustee ;  that  the  words 
"  having  a  perfect  confidence  that  she  would  act  up  to  the  views  which 
he  had  communicated  to  her,"  did  not  necessarily  imply  that  any  abso- 
lute  direction  had  been  given  to  her  as  to  the  disposition  of  the  property, 
but  were  consistent  with  the  testator  having  given  to  his  wife  either  as 
absolute  discretion,  or,  a  general  recomviendation  leaving  it  to  her  dis- 
cretion  to  act  upon  it  or  not  in  such  manner  as  she  might  think  fit ;  but 
the  vice-chancellor  admitted  that  if  the  plaintifis  had  proved  that  Lady 
Staines  had  undertaken  to  dispose  of  the  estate  in  a  given  manner,  she 
would  have  been  bound  by  the  engagement.  The  plaintiffs,  therefore, 
failed  in  converting  Lady  Staines  into  a  trustee  for  themselves,  and  as 
Lady  Staines  was  not  distinctly  invested  with  the  character  of  trustee 
upon  the  face  of  the  will,  no  equitable  interest  resulted. 

We  have  stated  the  rule  that  if  a  testator  make  a  devise  carrying  the 
beneficial  interest  on  the  face  of  the  will,  but  it  appears  from  the  admis- 
sion of  a  devisee  or  by  evidence  that  the  devisee  was  pledged  to  the  tes- 
tator to  execute  a  charitable  trust,  the  court  will  not  allow  the  execution 
of  such  a  trust,  but  will  give  the  estate  to  the  heir-at-law.  The  question 
r  *79 1  ^®^®  suggests  *itself,  whether  the  Statute  of  Mortmain,(z)  which 
L  -J  declares  a  devise  "  in  trust  or  for  the  benefit  of"  a  charity  to  be 
absolutely  void,  applies  to  such  a  case,  so  as  not  only  to  defeat  the  equitable 
interest  admitted  or  proved  to  have  been  intended  for  a  charity,  but  also 
to  make  void  the  devise  of  the  legal  estate  itself,  so  that  by  the  efi"ect  of 
the  statute,  when  the  fact  has  been  established,  the  devisee  takes  no 
interest  either  at  law  or  in  equity. 

Lord  Hardwicke  determined  in  Adlington  v.  Cann,(a)  that  the  Sta- 
tute of  Mortmain  did  not  extend  to  trusts  by  parol.  "  I  am  of  opinion," 
he  said,  "  that  the  Statute  of  Mortmain  has  not  abrogated  the  Statute  of 
Frauds,  which,  being  made  for  the  public  good,  ought  normam  imponere 
futuris.  It  is  true  the  Statute  of  Frauds  cannot  govern  the  particular 
provisions  of  the  Statute  of  Mortmain,  but  it  must  govern  the  construc- 
tion of  subsequent  acts  ;  for  they  must  be  construed  by  rules  of  law,  and 
by  what  is  laid  down  in  precedent  acts.  If  it  should  be  admitted  that 
the  Statute  of  Mortmain  took  all  these  cases  out  of  the  Statute  of  Frauds, 
and  was  intended  to  introduce  parol  evidence,  it  would  do  more  mischief, 

fe-*  STI^^^  ^"^^'  ''•  ^^°°''''  3  ^^  ^^^  ^  Sm.  525 ;  3  Mac.  &  Gord.  546. 
{z)  9  G.  2,  c.  36.  ^„3  3  ^t,,   {^^_ 


FORMALITIES    REQUIRED    TO    CREATE   A   TRUST.    133 

by  laying  the  foundation  of  a  great  deal  of  perjury,  than  it  can  possibly  do 
good  in  any  other  respect  whatsoever,  (i)  Besides,  very  little  inconvenience 
can  arise  from  my  determination  to  this  effect,  for  the  instances  of  trus- 
tees abusing  a  trust  for  charity  are  so  frequent,  that  they  are  a  suflBcient 
warning  to  reasonable  men  not  to  leave  their  estates  under  such  uncer- 
tainty, as  to  put  them  absolutely  under  a  person's  power,  and  then  trust 
to  his  generosity  for  the  disposing  of  them  in  charity.(cy'  Thus,  in  Lord 
Hardwicke's  view  of  the  subject,  a  parol  trust  in  mortmain,  where  the 
devisee  entered  into  no  engagement  with  the  testator,  could  not  be  esta- 
blished against  the  devisee  to  deprive  him  of  the  beneficial  interest  ;(&?) 
and  where  the  devisee  did  enter  into  such  an  engagement,  and  the  fact 
was  either  admitted  by  the  defendant,  or  established  against  him  by  evi- 
dence, the  trust  only  was  void  upon  principles  of  equity,  and  not  the 
devise  of  the  legal  estate  by  force  of  the  Statute  of  Mortmain. 

*Lord  Northington,  on  the  contrary,  thought  that  secret  trusts  ^  ^qq  -, 
were  within  the  letter  of  the  Statute  of  Mortmain  ;  and  he  there-  L  J 
fore  decided,  that  whether  the  testator  had  held  communication  with  the 
devisee(6)  or  not,(/)  the  intention  of  creating  an  honorary  trust  would, 
if  established,  avoid  the  devise  of  the  legal  estate  itself.  "  What,''  he 
says,  "  stands  in  my  way  ?  One  objection  is,  that  the  beneficial  devise 
to  the  trustees  and  their  heirs  by  the  will  is  not  to  be  revoked  or  con- 
trolled by  the  second  instrument,  it  not  being  executed  according  to  the 
Statute  of  Frauds,  and  therefore  it  only  can  be  taken  as  an  honorary 
trust,  and  as  such  is  not  within  the  Statute  of  Mortmain.  This  is  as 
much  as  to  say,  that,  being  a  fraud  within  both  acts,  it  is  not  within  either. 
And  the  objection  is,  that  it  will  be  more  inconvenient  to  let  in  fraud 
and  perjury  by  opening  the  Statute  of  Frauds,  than  to  let  in  devises  to 
charities  by  opening  the  Statute  of  Mortmain.  My  opinion  is,  that  the 
Statute  of  Mortmain  meant  to  prevent  honorary  trusts  or  devises  for 
charities  quacunque  a^'te  vel  ingenio  ;  and  the  honorary  trust  infects  the 
will,  as  much  as  if  it  were  declared  in  the  most  solemn  manner."^,^)  Sir 
Thomas  Sewell,  in  the  case  of  Bishop  v.  Talbot,  before  stated,  where  the 
fact  of  the  trust  was  established  on  the  admission  of  the  devisee,  con- 
sidered the  heir  as  entitled  to  a  resulting  trust.  His  honor  therefore 
was  apparently  of  opinion  with  Lord  Hardwicke,  (as  appears  the  more 
correct  view)  that,  in  the  ease  of  a  trust  in  mortmain  not  declared  with 
the  formalities  required  for  a  will,  the  devise  of  the  legal  estate  was  good, 
as  not  affected  by  the  Statute  of  Mortmain,  though  equity  where  there 
was  any  mala  Jides  in  the  devisee  would  set  it  aside  on  the  ground  of 
fraud  upon  public  policy. 

The  provisions  of  the  Statute  of  Frauds  relating  to  wills  have  now 
been  repealed,  and  the  distinction  whicli  before  existed  between  devises  of 
real  and  bequests  of  personal  estate  has  been  abolished. (/<)  The  prin- 
ciples, however,  established  by  the  foregoing  cases  with  reference  to  the 

(b)  3  Atk.  150.  (c)  Id.  153. 

{d)  And  this  is  now  settled  law.  ^Yalgl•ave  v.  Tebbs,  2  Kay  &  J.  313;  and 
cases  cited  supra. 

(e)  Edwards  v.  Pike,  1  Ed.  2C7.  (/)  Boson  v.  Statham,  1  Edw.  503. 

Iff)  Boson  V.  Statham,  1  Ed.  512,  514.      (h)  I  Vict.  c.  2G. 


134       LEWIN  ON  THE  LAW  Of  TRUSTS,  ETC. 

Statute  of  Frauds  still  apply  mutatis  mutandis  to  the  enactments  of  the 
statute  at  present  in  force. 

[*81]  *SECTION  IV. 

OF   TRANSMUTATION   OF   POSSESSION 

Where  there  is  valuable  consideration,  and  a  trust  is  intended  to  be 
created,  formalities  are  of  minor  importance,  since  if  the  transaction 
cannot  take  effect  by  way  of  trust  executed  it  may  be  enforced  by  a  court 
of  equity  as  a  contract  for  value.  Where  there  is  no  valuable  considera- 
tion, it  has  been  not  unfrequently  supposed  that,  in  order  to  give  the 
court  jurisdiction,  there  must  be  a  transmutation  of  possession,  i.  e.,  the 
legal  interest  must  be  divested  from  the  settlor,  and  transferred  to  some 
third  person.  But  upon  a  careful  examination  of  the  authorities  the 
principle  appears  to  be,  that  whether  there  was  transmutation  of  pos- 
session or  not,  the  trust  will  be  supported — provided  it  was  in  the  first 
instance  'perfectly  created.{i^ 

To  elucidate  this  subject  it  may  be  convenient  to  marshal  the  cases 
under  the  following  heads. 

First.  It  is  evident  that  a  trust  is  not  perfectly  created  where  there 
is  a  mere  intention  or  voluntary  agreement  to  establish  a  trust,  the  set- 
tlor himself  contemplating  some  further  act  for  the  purpose  of  giving  it 
completion. 

Thus  in  Cotteen  v.  Missing, (A;)  Ann  Lee  Missing  was  entitled  to  a 
residuary  personal  estate  in  the  hands  of  the  executors,  and  Charlotte 
Missing  being  in  destitute  circumstances,  the  executors  applied  to  Ann 
Lee  to  make  her  some  allowance.  Ann  Lee  wrote  in  reply,  "  As  to 
the  money  to  be  allowed  to  Charlotte,  when  you  ascertain  what  the 
property  is,  whatever  you  and  Mr.  Missing  think  right  that  I  should  give, 
I  shall  abide  by."  The  executors  answered,  that  they  thought  500/. 
r*89n  *would  be  a  proper  sum  ;  and  Ann  Lee  then  replied.  ''With 
L  "-I  respect  to  Charlotte,  as  you  and  Mr.  Missing  say  she  ought  to  be 
allowed  500/.,  I  will  readily  consent  to  it.  I  am  willing  to  do  anything 
that  is  right."  Under  these  circumstances  Sir  T.  Plumer  thought  that 
the  gift  was  still  in  fieri.  "  To  make  a  complete  gift  there  must  not 
only  be  a  clear  intention,  but  the  intention  must  be  executed  and  carried 
into  effect.  At  the  date  of  the  first  letter  to  the  executors  the  gift  was 
inchoate,  the  quantum  of  property  not  having  been  ascertained.  The 
second  letter  amounted  to  a  declaration  of  the  propriety  of  giving  her 
500?.,  and  shows  her  approval  of  a  gift  to  that  amount,  but  does  not  give 

^  («■)  See  Ellison  v.  Ellison,  6  Ves.  662  ;  Pulvertoft  v.  Pulvertoft,  18  Ves.  99  ; 
Sloane  v.  Cadogan,  Vend.  &  P.  Append.  No.  24 ;  Edwards  v.  Jones,  1  M.  &  Cr. 
226 ;  Wheatley  v.  Purr,  1  Keen,  551 ;  Garrard  v.  Lauderdale,  2  R.  &  M.  453  ;  Col- 
linson  v.  Patrick,  2  Keen,  123  ;  Dillon  v.  Coppin,  4  M.  &  Cr.  647 ;  Meek  v.  Kettle- 
well,  1  Hare,  469  ;  Fletcher  v.  Fletcher,  4  Hare,  74  ;  Price  v.  Price,  14  Beav.  598  ; 
Bridge  v.  Bridge,  16  Beav.  315  ;  Beech  v.  Keep,  18  Beav.  285  ;  Donaldson  v.  Don- 
aldson, 1  Kay,  711 ;  Scales  v.  Maude,  6  De  Gex,  M.  &  G.  43  ;  Airey  v.  Hall,  2  Jur. 
N.  S.  658.  i^k)  1  Mad.  176. 


FORMALITIES    REQUIRED    TO    CREATE    A    TRUST.    135 

effect  to  tlie  gift  and  carry  it  into  execution.  Nothing  is  said  as  to 
who  is  to  pay  the  money,  or  when  it  is  to  be  paid.  The  executors  were 
not  warranted  in  paying  it  out  of  the  money  in  their  hands.  If  they 
had  done  so,  Mrs.  Missing  might  have  said,  I  meant  to  give  the  money 
on  terms  and  conditions  as  to  marriage  and  age.  Nothing  is  said  as  to 
what  part  of  her  property  this  money  was  to  be  raised  out  of,  Avhether 
out  of  the  money  in  the  funds,  or  out  of  the  estate.  Nothing  is  to  be 
found  in  the  letters  but  an  intention  to  give,  and  therefore  this  case 
widely  differs  from  the  cases  alluded  to,  where  acts  were  done  carrying 
the  gift  into  execution.  Here  the  gift  was  not  completed.  Supposing 
it  were  anything  like  an  authority  to  an  agent,  the  subsequent  marriage 
of  Mrs.  Missing  was  a  revocation  of  such  authority,  as  was  likewise  her 
death.  This  was  a  mere  inchoate  imperfect  gift  not  carried  into  execu- 
tion, and  which  has  therefore  failed." 

Secondly.  If  the  settlor  propose  to  convert  liimself  into  a  trustee, 
then  the  trust  is  perfectly  created  so  soon  as  the  settlor  has  executed  an 
express  declaration  of  trust,  intending  to  be  final  and  binding  upon  him, 
and  in  this  case  it  is  immaterial  whether  the  nature  of  the  property  be 
legal  or  equitable. 

Thus  in  Ex  parte  Pye,  or  Ex  parte  Dubost,(?)  J.  M.  had  authorised 
C.  D.  to  purchase  an  annuity  for  M.  G.  G.  for  life.  *The  annuity  ^^  j,„  -. 
was  purchased,  but  in  the  name  of  J.  31.,  who  thereupon  sent  L  J 
over  a  power  of  attorney  to  transfer  the  annuity  into  the  name  of  M.  G. 
G.  Before  the  commission  could  be  executed  J.  M.  died,  but  Lord 
Eldon  determined  that  a  valid  trust  had  been  created.  "  The  question," 
he  said,  "  involves  the  point,  whether  the  power  of  attorney  amounts 
here  to  a  declaration  of  trust.  It  is  clear,  that  this  court  will  not  assist 
a  volunteer;  yet  fthe  act  is  completed,  though  voluntary,  the  court  will 
act  upon  it.  It  has  been  decided  that,  upon  an  agreement  to  transfer 
stock,  this  court  will  not  interpose;  but  if  the  party  has  declared  him- 
self to  he  the  trustee  of  the  stock,  if  becomes  the  property  of  the  cestui  que 
trust  without  more,  and  the  court  will  act  upon  it.  From  the  documents 
before  me  it  does  appear,  that  though  in  one  sense  this  may  be  represent- 
ed as  the  testator's  personal  estate,  yet  he  has  committed  to  writing 
what  seems  to  me  a  sufficient  declaration  that  he  held  this  part  of  the 
estate  in  trust  for  the  annuitant."  In  this  case  it  will  be  observed,  that 
the  gift  was  perfected  as  soon  as  the  agent  had  laid  out  the  money  in  the 
purchase  of  the  annuity.  Had  the  purchase  been  made  in  the  name 
of  J.  M.  as  beneficial  owner,  the  execution  of  the  power  of  attorney, 
as  it  failed  to  transfer  the  possession,  would  not  have  been  a  valid  decla- 
ration of  trust ;  but  the  purchase  was  made  in  the  name  of  J.  M.  as 
trustee  for  the  annuitant,  and  the  power  of  attorney  and  other  documents 
were  read,  not  as  instruments  originating  the  trust,  but  as  proofs  of  the 
trust  which  had  been  previously  created. 

(?)  18  Ves.  140  ;  and  see  Thorpe  v.  Owen,  5  Beav.  224  :  Stapleton  v.  Stapleton, 
14  Sim.  186;  Searle  v.  Law,  15  Sim.  99;  Drosier  v.  Brereton,  15  Beav.  221  ; 
Bentley  v.  Mackay,  15  Beav.  12  ;  Bridge  v.  Bridge,  16  Beav.  315  ;  Gray  v.  Gray, 
2  Sim.  N.  S.  273  ;  Wilcocks  v.  Hannyngton,  5  Jr.  Ch.  Re.  38  ;  Dipple  v.  Corles,  11 
Hare,  183. 


136  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

In  a  late  case(m)  Sir  J.  Wigram  expressed  himself  more  cautiously 
than  was  necessary,  as  to  the  jurisdiction  of  the  court  in  enforcing  a 
trust  against  the  settlor  himself,  and  suggested  several  accompanying 
circumstances  as  material  to  the  establishment  of  such  a  trust.  "In 
the  case,'^  he  said,  "  of  a  formal  declaration  by  the  legal  or  even  benefi- 
cial owner  of  property,  declaring  himself  in  terms  the  trustee  of  that 
.  -^  property,  *for  a  volunteer  the  court  might  not  be  bound  to  look 
L  J  beyond  the  mere  declaration.  If  the  owner  of  property  having 
the  legal  interest  in  himself,  were  to  execuet  an  instrument  by  which  he 
declared  himself  a  trustee  for  another,  and  had  disclosed  that  instrument 
to  the  cestui  qui  trust,  and  afterwards  acted  upon  it,  that  might  perhaps 
be  sufficient ;  for  a  court  of  equity,  adverting  to  what  Lord  Eldon  said 
in  Ex  parte  Dubost,  might  not  be  bound  to  inquire  further  into  an 
equitable  title  so  established  in  evidence." 

Thirdly.  Where  the  settlor  purposes  to  make  a  stranger  the  trustee, 
then  to  ascertain  whether  a  trust  has  been  perfectly  created  or  not,  we 
must  take  the  following  distinctions  : — 

1.  If  the  subject  of  the  trust  be  a  legal  interest,  and  one  capable  of 
legal  transmutation,  as  land  or  chattels  which  pass  by  conveyance,  as- 
signment, or  delivery,  or  stock  which  passes  by  transfer,  in  this  case 
the  trust  is  not  perfectly  created  unless  the  legal  interest  be  actually 
vested  in  the  trustee  :  it  is  not  enough  that  the  settlor  executed  a  deed 
affecting  to  pass  it,  and  that  he  believed  nothing  to  be  wanting  to  give 
effect  to  the  transaction  :  the  intention  of  divesting  himself  of  the  legal 
property  must  in  fact  have  been  executed,  or  the  court  will  not  recog- 
nize the  trust.(H)  "I  take  the  distinction,"  said  Lord  Eldon,  "  to  be, 
that  if  you  want  the  assistance  of  the  court  to  constitute  you  cestui  que 
trust,  and  the  instrument  is  voluntary,  you  shall  not  have  that  assistance 
for  the  purpose  of  constituting  you  cestui  que  trust,  as  upon  a  covenant 
to  transfer  stock,  &c.  :  if  it  rests  in  covenant  and  is  purely  voluntary, 
this  court  will  not  execute  that  voluntary  covenant ;  but  if  the  party 
has  completely  transferred  stock,  &c.,  though  it  is  voluntary,  yet  the 
legal  conveyance  being  effectually  made,  the  equitable  interest  will  be 
enforced  by  this  court."(o) 

p-jjgK-.  In  Colman  v.  Sarel,(^)  George  Davy  having  1000^.  Bank 
*-  -J  *Anuuities  standing  in  his  name,  assigned  that  sum  by  deed  upon 
trust  for  Joan  Sarel  for  life,  with  remainder  to  her  children,  and  cove- 
nanted to  pay  the  dividends  accordingly,  but  no  actual  transfer  of  the 
stock  was  ever  made.  The  children  filed  a  bill  for  the  execution  of  the 
trust,  and  Lord  Thurlow,  in  dismissing  the  bill,  observed,  "  When  a 
deed  is  not  sufficient  in  truth  to  pass  the  estate  out  of  the  hands  of  the 
settlor,  but  the  party  must  come  into  equity,  the  court  has  never  yet 

(m)  Meek  v.  Kettlewell,  1  Hare,  4*70 ;  and  see  Hughes  v.  Stubbs,  1  Hare,  4T8. 

(n)  See  Garrard  v.  Lauderdale,  2  Russ.  &  M.  452  ;  Meek  v.  Kettlewell,  1  Hare, 
469 ;  Dillon  v.  Coppin,  4  M.  &  Cr.  647  ;  Coningham  v.  Plunkett,  2  Y.  &  C.  Ch.  Ca. 
245;  Searle  v.  Law,  15  Sim.  95  ;  Price  v.  Price,  14  Beav.  598  ;  Bridge  v.  Bridge, 
16  Beav.  315 ;  Weale  v.  Ollive,  17  Beav.  252 ;  Beech  v.  Keep,  18  Beav.  285  ;  Airey 
^'  /  r-i^^  '^^^'  ^-  ^-  ^^^  !  ^'^'^  Kiddill  t.  Farnell,  5  Weekly  Rep.  324. 

(o)  Ellison  V.  Ellison,  6  Vcs.  662  ;  and  see  Pulvertoft  v.  Pulvertoft,  18  Yes.  89. 

(P)  1  Yes.jun.  50;  S.  C.  3  B.  C.  C.  12. 


FORMALITIES  REQUIRED  TO  CREATE  A 

executed  a  voluntary  agreement.  To  do  so  would  be  to  make  liim  who 
does  not  sufficiently  convey,  and  his  executors  after  his  death,  trustees 
for  the  person  to  whom  he  has  so  defectively  conveyed,  and  there  is  no 
case  where  a  court  of  equity  has  ever  done  that." 

In  Antrobus  v.  Smith,(2)  a  Mr.  Crawfurd  being  entitled  to  ten  shares 
of  the  Forth  and  Clyde  Navigation,  wrote,  upon  the  receipt  for  one  of 
the  subscriptions,  and  signed  the  following  indorsement,  "  I  do  hereby 
assign  to  my  daughter,  A.  Crawfurd,  all  my  right,  title,  and  interest 
of  and  in  the  enclosed  call,  and  all  other  calls  of  my  subscription  in  the 
Clyde  and  Forth  Navigation."  After  Mr.  Crawfurd's  death,  the  repre- 
sentative of  A.  Crawfurd  filed  a  bill  to  have  the  shares  transferred.  Sir 
W.  Grant  dismissed  the  bill,  and  observed,  ^<This  instrument,  of  itself, 
was  not  capable  of  conveying  the  property.  It  is  said  to  amount  to  a 
declaration  of  trust.  Mr.  Crawfurd  was  no  otherwise  a  trustee  than  as 
any  man  may  be  called  so  who  professes  to  give  property  by  an  instru- 
ment incapable  of  conveying  it.  He  was  not  in  form  declared  a  trustee, 
nor  was  that  mode  of  doing  what  he  proposed  in  his  contemplation.  He 
meant  a  gift.  He  says  he  assigns  the  property.  But  it  was  a  gift  not 
complete.  The  property  was  not  transferred  by  the  act.  Could  he  him- 
self have  been  compelled  to  give  effect  to  the  gift,  by  making  an  assign- 
ment ?  There  is  no  case  in  which  a  party  has  been  compelled  to  perfect 
a  gift  which,  in  the  mode  of  making  it,  he  has  left  imperfect." 

2.  If  the  subject  of  the  trust  be  a  legal  interest,  but  not  one  capable 
of  legal  transfer,  as  a  bond  or  other  clwse  en  action,  which  cannot  be 
assigned  at  law,  then  whether  we  look  to  *principle  or  authority,  p  ^g^  -, 
there  is  considerable  difficulty.  On  the  one  hand,  it  maybe  L  J 
argued  that  as  the  settlor  cannot  divest  himself  of  the  legal  interest,  to 
say  that  he  shall  not  constitute  another  a  trustee  without  passing  the 
legal  interest  would  be  debarring  him  from  the  creation  of  a  trust  in  the 
hands  of  another  at  all,  and  that  the  rule  therefore  should  be  that  if  the 
settlor  make  all  the  assignment  of  the  property  in  his  power  and  perfect 
the  transaction  as  far  as  the  law  permits,  the  court  in  such  a  case  should 
recognise  the  act,  and  support  the  validity  of  the  trust.  On  the  other 
hand,  it  may  be  urged,  that  in  equity  the  universal  rule  is  that  a  court 
will  not  enforce  a  voluntary  agreement  in  favour  of  a  voluuteer ;  and  as 
by  the  supposition  the  legal  interest  remains  in  the  settlor  (who  there- 
fore at  law  retains  the  full  benefit,)  a  court  of  equity  will  not  in  the 
absence  of  any  consideration  deprive  him  of  that  interest  which  he  has 
not  actually  parted  with. 

Some  judges  have  adopted  the  one  view  of  the  question,  and  some 
the  other. 

In  Fortescue  v.  Barnett,(r)  A.  assigned  a  policy  to  trustees,  but 
retained  possession  of  it,  and  afterwards  received  a  bonus  upon  it,  and 
then  surrendered  it  to  the  insurance  office.  The  surviving  trustee  filed 
a  bill  against  the  settlor  himself  for  an  account  of  the  proceeds.  The 
counsel  for  the  defendant,  the  settlor,  argued  that  there  was  no  difference 
between  an  attempted  assignment  of  stocic,  and  of  a  bond  or  policy,  and 

{q)   12  Ves.  39.  (r)  3  M.  &  K.  36. 


138       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

therefore  that  no  trust  was  created ;  but  Sir  J.  Leach  ruled  otherwise, 
and  said,  "  In  the  case  of  a  voluntary  assignment  of  a  bond,  where  the 
bond  is  not  delivered  but  kept  in  the  possession  of  the  assignor,  this 
court  would  undoubtedly,  in  the  administration  of  the  assets  of  the 
assignor,  consider  the  bond  as  a  debt  to  the  assignee.  There  is  a  plain 
distinction  between  an  assignment  of  stock  where  the  stock  has  not  been 
transferred,  and  an  assignment  of  a  hond.  In  the  former  case,  the 
material  act  remains  to  be  done  by  the  grantor,  and  nothing  is  in  fact 
done  which  will  entitle  the  assignee  to  the  aid  of  this  court  until  the 
f^tock  is  transferred ;  whereas  the  court  will  admit  the  assignee  of  the 
^  hond  as  a  creditor.  In  the  present  *case  the  gift  of  the  policy 
L  J  appears  to  me  to  have  been  perfectly  complete  without  delivery ; 
nothing  remained  to  be  done  by  the  grantor,  nor  could  he  have  done 
what  he  afterwards  did  to  defeat  his  own  grant  if  the  trustees  had  given 
notice  of  the  assignment  to  the  assurance  office.  The  question  does  not 
here  turn  upon  any  distinction  between  a  le^al  and  an  equitahle  title,  hnt 
simply  upon  whether  any  act  remained  to  be  done  by  the  grantor,  which, 
to  assist  a  volunteer,  this  court  would  not  compel  him  to  do.  I  am  of 
opinion  that  no  act  remained  to  be  done  to  complete  the  title  of  the 
trustees.  The  trustees  ought  to  have  given  notice  of  the  assignment, 
but  their  omission  to  give  notice  cannot  affect  the  c'estnis  que  trust." 

And  in  Roberts  v.  Lloyd,(s)  where  Mrs.  Eoberts  assigned  a  bond  to  a 
trustee  with  a  power  of  attorney,  and  both  tmstee  and  cestuis  que  trust 
had  notice  of  it,  and  after  the  death  of  the  settlor,  a  bill  was  filed  by 
one  of  the  cestuis  que  trust  against  the  trustee  and  the  obligor,  on  the 
ground  that  the  trustee  had  by  his  agent  received  and  misapplied  the 
money,  and  that  the  obligor  with  a  knowledge  of  the  settlement  had 
been  a  party  to  the  misapplication,  Lord  Langdale  said,  "  I  think  Mrs. 
Roberts  did  everything  incumbent  on  her  to  make  the  trust  complete 
and  valid,  and  that  the  plaintiff"  is  entitled  to  have  the  benefit  of  it;" 
and  both  trustee  and  obligor  were  held  liable. 

So  in  Blakely  v.  Brady,(^)  A.  had  a  promissory  note  to  pay  the  sum 
of  1620/.  on  a  certain  notice,  and  interest  in  the  mean  time,  and  assigned 
it  to  B.  by  deed,  and  gave  him  a  power  of  attorney,  and  then  A.  died, 
and  B.  filed  his  bill  against  his  administrator  to  have  the  benefit  of  the 
trust,  Lord  Plunket  decreed  the  money  to  the  plaintiff.  «  The  doctrine," 
he  said,  "  that  a  cJiose  en  action  is  not  legally  assignable,  does  not  appear 
to  me  to  be  one  that  a  court  of  equity  is  called  on  to  extend  beyond  the 
exact  limits  to  which  it  has  been  already  carried  by  distinct  authority. 
If  the  transaction  is  not  in  itself  illegal,  and  if  no  act  remains  to  be 
done  by  the  grantor,  why  is  it  not  to  be  acted  on  as  a  valid  and  complete 
transaction  between  the  parties  ?"(iA 

r*88"l  *^^  *^^  ^^^^^^  hand  in  Edwards  v.  Jones,(i')  Mary  Custance 
J  being  entitled  to  a  ho7id  wrote  and  signed  the  following  indorse- 
ment upon  it,  "  I,  Mary  Custance,  of,  &c.,  do  hereby  assign  and  transfer 
the  within  bond,  &c.,  unto  and  to  the  use  of  my  niece,  E.  Edwards, 
of,  &c.,  with  full  power  and  authority  for  the  said  E.  Edwards  to  sue  for 

(«)  2  Beav.  3^6.  (t)  2  Drur.  &  Walsh.  311. 

(")  lb.  326.  (,;j  1  M.  &  Cr.  226. 


FORMALITIES    REQUIRED    TO    CREATE    A    TRUST.    139 

and  recover  the  araount  thereof,  &c./'  and  delivered  the  bond  to  the 
assignee.  On  the  death  of  Mary  Custance,  her  niece  E.  Edwards  filed 
a  bill  against  the  executor  for  an  assignment  of  the  bond.  The  vice- 
chancellor  of  England  dismissed  the  bill  with  costs,  and  on  appeal  to 
the  lord  chancellor  the  decision  was  affirmed.  In  the  course  of  his 
judgment,  Lord  Cottenham  referred  to  the  case  of  Fortescue  v.  Barnett, 
and  endeavoured  to  distinguish  it  from  the  case  before  him,  but  it  is 
evident  that  Sir  J.  Leach's  decision  did  not  meet  with  his  approbation. 

Again,  in  Ward  v.  Audland,(z«)  where  A.  assigned  to  trustees  d, policy, 
mortgages,  and  other  clioses  in  action,  to  trustees,  and  the  cestuis  que  trust 
filed  a  bill  against  the  executors  of  A.  for  the  establishment  of  the  trust, 
the  vice-chancellor  of  England  dismissed  the  bill  with  costs,  and  said, 
"  There  was  no  equity  for  the  court  to  interfere,  but  what  the  plaintiffs 
got  by  their  deed  they  might  maintain  by  their  deed."  The  case  was 
carried  on  appeal  to  the  lord  chancellor,  who  dismissed  the  bill,  from 
error  in  the  form  of  the  pleadings,  and  without  prejudice  to  the  institu- 
tion of  another  suit ;  but  apparently  he  adhered  to  the  doctrine  laid  down 
in  Edwards  v.  Jones.(j;)  A  suit  was  subsequently  instituted  at  the  Rolls, 
and  his  lordship  dismissed  the  bill  on  the  same  grounds  on  which  the 
vice-chancellor  had  refused  relief  in  the  former  suit.(y) 

The  opinion  of  Sir  J.  Wigram  in  the  late  case  of  Meek  v.  Kettlewell(2) 
was  strongly  expressed  in  support  of  the  view  taken  by  the  vice-chan- 
cellor of  England  and  Lord  Cottenham.  However,  in  a  more  recent 
case(«)  Lord  Justice  K.  Bruce  observed,  <'  It  is  upon  legal  and  equitable 
principle,  we  apprehend,  *clear  that  a  person  sui  Juris  acting  rjj^on-i 
freely,  fairly,  and  with  sufficient  knowledge,  ought  to  have  and  L  -^ 
has  it  in  his  power  to  make  in  a  binding  and  effectual  manner  a  volun- 
tary gift  of  any  part  of  his  property,  whether  capable  or  incapable  of 
mammal  deliver?/,  tvhether  in  jwssession  or  reversionary/  or  howsoever 
circumstanced,"  and  it  is  conceived  that  this  principle  will  for  the 
future  prevail. 

3.  If  the  subject  of  the  trust  be  an  cquitahle  interest,  then  a  trust  is 
perfectly  created  when  the  settlor  has  executed  an  assignment  of  it  to  a 
new  trustee ;  for  an  equitable  interest  is  capable  of  transmission  from  one 
to  another;  and  here  the  court  finds  the  relation  of  trustee  and  cestui 
que  trust  established  without  the  necessity  of  calling  on  the  settlor  to 
join  in  any  act  for  giving  it  completion. 

This  was  decided  by  Sir  W.  Grant  in  the  case  of  Sloane  v.  Cadogan.(&) 
W.  B.  Cadogan  was  entitled,  subject  to  his  father  Lord  Cadogan's  life 
interest  therein,  to  one  quarter  share  of  a  sum  of  20,000?.,  invested  in 
bank  annuities  in  the  names  of  the  trustees  of  Lord  Cadogan's  marriage- 

(w)  8  Sim.  571. 

(x)  Cooper's  Ca.  1837-8,  p.  146.  {y)  8  Beav.  201. 

[x)  1  Hare,  464 ;  and  see  Scales  v.  Maude,  6  De  Gex,  M.  &  G.  43. 

(a)  Kekewich  t.  Manning,  1  De  Gex,  Mac.  &  Gord.  187,  188. 

{h)  Append,  to  Vend.  &  Purch.  Qua?re,  also,  if  the  same  point  was  not  ruled  in 
Ellison  V.  Ellison,  6  Ves.  656;  for  though  the  facts  are  very  imperfectly  stated,  it 
would  seem  from  some  expressions  that  at  the  date  of  settlement  the  legal  estate 
was  not  in  the  settlor;  and  see  Reed  v.  O^Brien,  7  Beav.  32;  Bridge  v.  Bridge,  16 
Beav.  315;  Gannon  v.  White,  2  Ir.  Eq.  Re.  207. 


140  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

settlement,  and  this  reversionary  interest  he  assigned  to  four  trustees 
upon  trust  as  to  1000/.  for  himself,  his  appointees  or  assigns,  and  as  to 
the  residue  upon  trust  for  himself  for  life,  with  remainder  to  Jane  his 
wife  for  life,  with  remainder  to  their  issue  as  they  should  jointly  appoint, 
and  in  default  of  issue  as  W.  B.  Cadogan  should  by  deed  or  will  appoint, 
and  in  default  of  such  appointment  upon  trust  for  Lord  Cadogan,  the 
father,  his  executors,  administrators,  and  assigns.  W.  B.  Cadogan  by 
will  appointed  Jane  his  wife  sole  executrix,  and  gave  her  "  all  his  estate 
and  effects."  There  was  no  issue,  and  on  the  death  of  W.  B,  Cadogan 
Jane  his  widow  filed  a  bill  against  the  executors  of  Lord  Cadogan  (who 
were  in  possession  of  the  trust  fund,  but  in  what  character  does  not  ap- 
pear,) to  have  her  right  to  the  whole  one  quarter  share  of  the  20,000?. 
^established.  Her  claim  was  advanced  upon  two  grounds,  1.  That 
L  J  supposing  the  assignment  by  W.  B.  Cadogan  to  be  valid,  the 
plaintiff  took  as  appointee  under  the  will  in  execution  of  the  power. 
2.  That  if  the  assignment  were  invalid,  then  the  plaintiff  took  as  execu- 
trix of  W.  B.  Cadogan.  The  defendants,  the  executors  of  Lord  Cadogan, 
insisted  that  the  assignment  was  valid,  but  that  the  will  was  not  an  ex- 
ecution of  the  power,  and,  therefore,  that  the  ultimate  limitation  to  Lord 
Cadogan  (subject  to  the  plaintiff's  life  interest)  took  effect;  and  so  it 
was  decided.  In  the  course  of  the  argument,  Sir  W.  Grant  remarked. 
"  The  assignment  was  as  good  an  assignment  as  could  be  made  of  this 
reversionary  interest;  you  may  be  a  trustee  for  a  volunteer;"  and  in  his 
judgment  he  observed,  "  It  was  said  that  the  gift  to  Lord  Cadogan  was 
merely  voluntary,  and  Loi'd  Cadogan  could  not  have  had  any  assistance 
from  this  court,  that  the  question  is  the  same  as  if  the  representatives 
(of  Lord  Cadogan)  were  seeking  rc.lir/\  as  the  circumstance  of  his  exe- 
cutors having  the  money  makes  no  difference,  and  I  think  that  that  cir- 
cumstance is  immaterial.  But  as  against  the  party  liimsdf  and  his 
representatives  a  voluntary  settlement  is  binding.  The  court  will  not 
interfere  to  give  perfection  to  the  instrument,  but  you  may  constitute  one 
a  trustee  for  a  volunteer.  Here  the  fund  was  vested  in  trustees.  W. 
B.  Cadogan  had  an  equitable  reversionary  interest  in  that  fund,  and  he 
has  assigned  it  to  certain  trustees,  and  then  the  first  trustees  are  trustees 
for  his  assigns,  and  they  may  come  here,  for  when  the  trust  is  created 
no  consideration  is  essential,  and  the  court  will  execute  it  though  vol- 
untary." 

"  If,"  said  Sir  J.  Wigram,  "  the  equitable  owner  of  property,  the  legal 
interest  of  which  is  in  a  trustee,  should  execute  a  voluntar}'^  assignment 
and  authorize  the  assignee  to  sue  for  and  recover  the  property  from  that 
trustee,  and  the  assignee  should  give  notice  thereof  to  the  trustee,  and 
the  trustee  should  accept  the  notice  and  act  upon  it,  by  paying  the  inter- 
est and  dividends  of  the  trust  property  to  the  assignee  during  the  life 
of  the  assignor,  and  with  his  consent,  it  might  be  difficult  for  the  executor 
or  administrator  of  the  assignor  afterwards  to  contend  that  the  gift  of  the 
r  *9i  -1  property  *was  not  perfect  in  equity,  (c)  The  vice-chancellor  here 
J  enumerates  all  the  safeguards  and  confirmatory  acts  of  which  the 

(c)  Meek  v.  Kettlewell,  1  Hare.  471. 


FOTcMALITIES    REQUIRED    TO    CREATE    A    TRUST.     141 

transaction  was  capable,  but  it  must  not  be  inferred  that  if  some  of  these 
were  wanting  the  trust  would  not  be  supported. 

In  one  case((?)  the  late  vice-chancellor  of  England  questioned  the  prin- 
ciple of  Sloane  v.  Cadogan.  But  in  Kekewick  v.  Manning,(e)  Lord 
Justice  K.  Bruce  observed,  "  Suppose  stock  or  money  to  be  legally  vested 
in  A.  as  a  trustee  for  B.  for  life,  and  subject  to  B.'s  life  interest  for  C. 
absolutely;  surely  it  must  be  competent  to  C.  in  B.'s  lifetime,  with  or 
without  the  consent  of  A.  to  make  an  effectual  gift  of  C.'s  interest  to  D. 
by  way  of  pure  bounty,  leaving  the  legal  interest  and  legal  title  untouched. 
If  so,  can  C.  do  this  better  or  more  effectually  than  by  executing  an 
assignment  to  D.  ?  It  may  possibly  be  thought  necesssary  that  notice 
should  be  given  to  A.,  but  upon  that  we  express  no  opinion." 

These  principles  have  since  been  acted  upon  in  Voyle  v.  Hughes,(/) 
and  Sloane  v.  Cadogan  may  now  be  regarded  as  established  law.  It  had 
before  been  contended  that  the  assignment  operated  by  way  of  contract, 
and  as  there  was  no  consideration  the  court  could  not  enforce  it ;  but  the 
rule  now  is,  that  the  assignment  passes  the  equitable  estate,  and  even  if 
notice  be  not  given  to  the  trustees  of  the  fund,  the  assignment  is  good  as 
against  the  assignor.  ((/) 

In  other  cases  a  party  entitled  to  an  equitable  interest,  instead  of 
assigning  it  to  new  trustees,  has  directed  the  old  trustees  to  stand  pos- 
sessed of  it  upon  the  new  trust,(7i)  and,  of  course,  it  has  been  considered 
quite  immaterial  whether  the  settlor  selected  new  trustees  or  was  content 
with  the  original  trustees. 

In  other  cases  the  owner  of  an  equitable  interest  has  simply  assigned 
it  to  a  stranger  for  the  stranger's  own  benefit,(i)  *which  also  in  j-  ^^2  n 
principle  is  the  same  as  Sloane  v.  Cadogan,  for  there  can  be  no  L  "^  J 
difference  between  the  gift  of  an  equitable  interest  to  A.  and  the  gift  of 
it  to  B.  in  trust  for  A. 

In  a  late  case(A:)  it  was  decided  by  Sir  J.  Wigram,  that  a  voluntary 
assignment  of  a  mere  expectancy  (as  of  an  heir  or  next  of  kin)  in  an  equi- 
table interest,  and  not  communicated  to  the  trustees,  did  not  amount  to 
the  creation  of  a  trust.  This  was  the  only  point  actually  decided,  and 
perhaps  a  distinction  may  be  said  to  exist  between  the  settlement  of  an 
actual  interest  and  an  expectancy,  for  a  trust  to  be  enforced  must  beper- 
fectly  created,  whereas  any  dealing  with  what  a  person  has  not,  but  only 
expects  to  have,  must  necessarily  in  some  sense  be  in  fieri.  However, 
in  the  course  of  his  argument  the  learned  judge  denied  that  any  distinc- 
tion existed  between  settlements  of  a  legal  interest,  as  in  Edwards  v. 
Jones,  and  of  an  equitable  interest,  as  in  Sloane  v.  Cadogan,  two  cases 
which  it  is  submitted,  both  on  principle  and  authority,  ought  not  to  be 
confounded.  Great  importance  was  also  attached  by  his  honor  to  the 
circumstance  that  notice  of  the  assignmetit  was  not  given  to  the  trustees. 

(d)  Beatson  v.  Beatson,  12  Sim.  281.  (e)   1  De  Gex,  Mac.  &  Gord.  p.  188. 

(  /)  2  Sm.  &  Gif.  18.  (g)  Donaldson  v.  Donaldson,  1  Kay,  711. 

(/()  Rycroft  v.  Christy,  3  Beav.  238 ;  M'Fadden  v.  Jenkins,  1  Hare,  458,  1  Phill. 

153. 

(i)  Cotteen  v.  Missing,  1  Mad.  176  ;  Collinson  v.  Patrick,  2  Keen,  123;  and  see 
Godsall  V.  Webb,  2  Keen,  99. 

(7c)  Meek  v.  Kettlewell,  1  Hare,  464. 

Janu.\ry,  1858.— 10 


142       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

But  notice  in  these  cases  is  not  indispensable.  As  against  the  settlor, 
an  equitable  interest  is  perfectly  transferred  -without  notice.  It  is  only 
as  between  purchasers  that  the  service  of  notice  on  the  trustee,  or  the 
want  of  it,  has  a  material  effect  upon  the  transfer.^  Meek  v.  Kettle- 
well  was  afterwards  heard  on  appeal  before  Lord  Lyndhurst,  who  affirmed 
the  decision. (m) 

If  a  complete  voluntary  settlement  be  once  executed  it  cannot  be  re- 
voked by  a  subsequent  voluntary  settlement  ',{ii)  but  a  voluntary  settlement 
of  land  by  way  of  trust,  perfectly  created  is  liable,  under  the  27  Eliz. 
cap.  4,  like  a  settlement  of  the  legal  estate,  to  be  defeated  by  a  subsequent 
sale  to  a  purchaser,  even  with  notice.  And  the  cestui  que  trust  can 
neither  obtain  an  injunction  against  the  sale,  though  the  settlement  was 
founded  on  meritorious  consideration,  as  a  provision  for  a  wife 
L  J  *or  child, (o)  nor  can  follow  the  estate  into  the  hands  of  the  pur- 
chaser,(^)  nor  charge  him  with  misapplication  of  the  purchase-money, 
if,  with  notice  of  the  voluntary  settlement,  he  paid  it  to  the  vendor,^^) 
'  nor  can  come  upon  the  settlor  himself  to  compensate  the  cestuis  que  trust 
for  their  loss.(r)  However,  the  trust  will  be  executed  by  the  court  until 
the  estate  be  actually  sold;(s)  and  the  author  of  the  settlement,  if  he 
contract  for  the  sale,  cannot  himself  file  a  bill  to  enforce  the  specific 
performance, (i)  though  the  purchaser  may  do  so,(w)  and  though  the 
settlor  himself  may  defeat  the  trust  by  a  subsequent  sale,  the  heir  or 
devisee  of  the  settlor  has  no  such  power ;(i-)  but  chattels  personal  (in 
which  respect  they  differ  from  chattels  real(?r)  are  not  within  the  statute 
of  27  Eliz.  c.  4,  relating  io  jnirchasers,  and  therefore  a  voluntary  settle- 
ment of  chatties  pereonal  cannot  be  defeated  by  a  subsequent  sale. (re) 

Again,  a  voluntary  settlement  either  of  real  or  personal  estate  by  one 
virtually  insolvent  or  largely  indebted  at  the  time,  will  by  the  13  Eliz. 
c.  5,  be  void  as  against  creditors. h/) 

As  every  agreement  under  hand  and  seal  carries  a  consideration  upon 

(/)  See  Burnv.  Carvalho,  4  M.  &  Cr.  G90;  Donaldson  v.  Donaldson,  1  Kaj.  711. 

(m)  1  Phill.  342. 

(n)  Newton  v.  Askew,  II  Beav.  145  ;  Rycroft  v.  Christy,  3  Beav.  238. 

(o)  Pulvertoft  v.  Pulvertoft,  18  Ves.  84. 

(p)  Williamson  v.  Williamson,  1  Yes.  516,  per  Lord  Hardwicke. 

{q)  Evelyn  v.  Templar,  2  B.  C.  C.  148  ;  and  see  Pulvertoft  v.  Pulvertoft,  18  Ves. 
01,  93;  Buckle  v.  Mitchell,  18  Yes.  112  ;  but  compare  Leach  v.  Dean,  (1  Ch.  Re. 
146,)  with  Pulvertoft  v.  Pulvertoft,  18  Yes.  91 ;  and  see  18  Yes.  92,  n«te  (b). 

(r)  Williamson  v.  Codrington,  1  Yes.  516,  per  Lord  Hardwicke  ;  but  see  Leach 
V.  Dean,  1  Ch.  Re.  146;   S.  C.  cited  Pulvertoft  v.  Pulvertoft,  18  Yes.  91. 

(s)  Pulvertoft  v.  Pulvertoft,  18  Yes.  94. 

(t)  Johnson  v.  Legard,  Turn.  &  Russ.  294;  Smith  v.  Garland,  2  Mer,  123. 

(m)  Willats  V.  Busby,  5  Bear.  193. 

(y)  Doe  V.  Rusham,  17  Q.  B.  Rep.  723;  Lewis  v.  Rees,  3  K.  &  J.  132. 

(w)  Saunders  v.  Dehew,  2  Yern.  272,  second  note. 

(x)  Bill  V.  Curetou,  2  M.  &  K  503  ;  M'Donel  v.  Hesilrige,  16  Beav.  346;  Jones 
T.  Croucher,  1  Sim.  &  Stu.  315,  (this  case  cites  also  the  authority  of  Sir.  W.  Grant 
m  Sloane  V.  Cadogan,  Append,  to  Yend.  &  Purch.,  but  the  dictum  does  not  appear :) 
Meek  v.  Kettlewell,  1  Hare,  473,  per  Sir  J.  Wio-ram. 

{y)  Fletcher  v.  Sidley,  2  Yern.  490;  TaylorV  Jones,  2  Atk,  600;  Townsend  v. 
Westacott,  2  Beav.  340;  Skarff  v.  Soulby,  1  Mac.  &  Gor.  364;  Re  Magawley's 
3  K  &  J   99   ^^  ^  ^^'  ^  '  ^^"^^^^  ^-  ^^^"glifin,  3  Drewry,  419  ;  Holmes  v.  Penney, 


FORMALITIES  REQUIRED  TO  CREATE  A  TRUST.  I43 

the  face  of  it,  and  will  support  an  action  at  law,  the  inference  Las  not 
unfrequently  been  drawn,  that  equity  in  such  *a  case,  though  ^  ^^ . 
the  trust  has  not  been  perfectly  created,  will  specifically  execute  L  J 
the  contract  in  favour  of  volunteers.  But  the  doctrine  is  at  once  con- 
tradicted by  the  circumstance  that  equity  never  enforced  a  covenant  to 
stand  seised  to  the  use  of  a  stranc/er  in  blood ;  and,  if  we  examine  the 
authorities,  we  shall  find  there  is  very  little  ground  in  support  of  the 
position.  In  Wiseman  v.  Koper(2)  the  covenant  was  entered  into  for  the 
purpose  of  reconciling  family  diiferences — a  consideration  always  held 
to  be  good.(rt)  Beard  v.  Nutthall(Z>)  was  the  case  of  a  bond  from  a  hus- 
band to  the  wife,  which  is  not  an  agreement  to  do  a  future  act,  but  the 
perfect  creation  of  a  present  debt.  In  Husband  v.  Pollard, (c)  a  lease 
was  assigned  to  a  volunteer,  with  a  covenant  to  renew,  and  a  court  of 
equity  compelled  the  execution  of  the  covenant  as  incidental  to  the  lease. 
In  other  cases  the  covenant  has  been  enforced  in  order  to  avoid  circuity, 
inasmuch  as  the  trustees,  with  whom  the  covenant  was  entered  into,  ^ 
might  have  recovered  at  law,  not  merely  nominal  damages,  but  the  full 
value  of  the  estate. (tZ)  At  all  events,  it  is  well  settled  at  the  present 
day,  that  a  voluntary  covenant,  notwithstanding  the  solemnity  of  the 
seal,  will  not  be  specifically  executed. (e) 

It  has  also  been  sometimes  supposed  that  where  the  trust  is  r^nr;  -1 
^imperfectly  created,  the  court,  without  proof  of  vahiahle  con-  L  -I 
sideration,  will  act  upon  meritorious  consideration,  as  payment  of  debts, 
or  provision  for  a  wife  or  child.(/) 

The  covenant  to  stand  seised  to  uses,  and  the  jurisdiction  of  the  court 
in  suj)plying  surrenders,  and  aiding  the  defective  execution  of  poicers, 
have  generally  been  referred  to  as  establishing,  or  at  least  countenancing, 
this  doctrine. 

As  regards  the  covenant  to  stand  seised  to  uses,  it  is  evident  that  mere 
meritorious  consideration  was  not  a  sufficient  ground  to  attract  the  juris- 

(z)  1  Ch.  Re.  158. 

(a)  See  Persse  v.  Persse,  7  CI.  &  Fin.  279  ;  Heap  v.  Tonge,  9  Hare,  90 ;  Dims- 
dale  V.  Dimsdale,  3  Drew,  556. 

(b)  1  Vern.  427. 

(c)  Cited  Randal  v.  Randal,  2  P.  W.  467 ;  and  see  Williamson  v.  Codrington,  1 
Ves.  511  ;  Harvey  v.  Audland,  14  Sim.  531. 

(d)  Vernon  Y.  Vernon,  2  P.  W.  594 ;  Goring  v.  Nash,  3  Atk.  186;  2nd  ground  ; 
S.  C.  cited,l  Ves.  513;  Stephens  v.  Trueman,  1  Ves.  73. 

(e)  Hale  v.  Lambe,  2  Ed.  294,  per  Lord  Northington ;  Fursaker  v.  Robinson. 
Pr.  Ch.  475  ;  Evelyn  v.  Templar,  2  B.  C.  C.  148;  Colman  v.  Sarel,  3  B.  C.  C.  12  ; 
Jeffreys  v.  Jeffreys,  Cr.  &  Phil.  138  ;  Meek  v.  Kettlevvell,  1  Hare,  474,  per  Sir  J. 
Wigram ;  Fletcher  v.  Fletcher,  4  Hare,  74,  per  eundem ;  Newton  v.  Askew,  1 1 
BeaV.  145;  Dillon  v.  Coppin,  4  Cr.  &  M.  647  ;  Kekewich  v.  Manning,  1  De  G.  M. 
allowed  to  create  a  debt  in  favour  of  B. ;  Fletcher  v.  Fletcher,  4  Hare,  67  ;  and  see 
&  G.  188.  But  a  voluntary  covenant  to  pay  a  sum  to  A.  in  trust  for  B.  has  been 
Bridge  v.  Bridge,  16  Beav.  315.  But  as  the  ground  of  this  is,  that  the  covenant  is 
perfect  at  law  and  the  covenantee  could  recover  upon  it,  it  seems  to  follow  that 
where  only  nominal  damages  would  be  given  at  law,  a  court  of  equity  would  not 
allow  proof  of  the  whole  sum.  See  Pulvertoft  v.  Pulvertoft,  18  Ves.  93  ;  Holloway 
V.  Headington,  8  Sim.  324;  Cox  v.  Barnard,  8  Hare,  310;  Dening  v.  "Ware,  22 
Beav.  184. 

(/)  A  child  may  plead  meritorious  consideration  as  against  the  parent,  but  of 
course  a  parent  cannot  plead  it  as  against  the  child  ;  Downing  v.  Townsend, 
Amb.  592. 


144       LEW  IN  ON  THE  LAW  OF  TRUSTS,  ETC. 

diction  of  the  court ;  for  no  use  would  have  arisen  in  favour  of  a  wife  or 
child,  unless  there  had  been  a  covenant.  "  There  are  several  ways  in 
the  law,"  said  Lord  Chief  Justice  Holt,  "  for  declaring  of  uses,  whether 
upon  transmutation  of  possession  or  without  it.  If  a  use  be  declared 
upon  transmutation  of  possession,  as  in  a  fine  or  feoffment,  it  is  sufficient 
for  the  party  on  the  transmutation  to  declare  that  the  use  shall  be  to 
such  a  party,  and  of  such  an  estate ;  but  if  a  use  arise  without  transmu- 
tation of  possession,  the  use  then  does  not  arise  by  virtue  of  any  declara- 
tion or  appointment,  but  there  must  be  some  precedent  obligation  to 
oblige  the  party  declaring  the  use,  which  must  be  founded  on  some  con- 
sideration ;  for  a  use,  having  its  foundation  generally  on  grounds  of 
equity,  could  not  be  relieved  in  chancery  without  transmutation  of  pos- 
session, or  an  agreement  founded  on  a  consideration ;  and,  therefore,  if 
bargain  and  sale  were  made  of  a  man's  lands,  on  the  payment  of  the 
money  the  use  would  have  arisen  without  deed  by  parol ;  hvt,  if  the  use 
was  in  consideration  ofhlood,  then  it  could  not  arise  hy  parol  agreement 
without  a  deed,  because  that  agreement  teas  not  an  ohliging  agreement — 
it  icanted  a  consideration,  and  therefore,  to  make  it  an  ohliging  agree- 
ment, there  was  necessity  of  a  deed."[<j\  Thus,  if  equity  be  governed  by 
the  strict  analogy  of  uses,  the  court  cannot  act  upon  meritorious  con- 
sideration where  the  contract  is  by  parol ;  and  though,  where  the  agree- 
ment is  under  seal,  the  argument  of  analogy  applies,  yet  it  follows  not 
r  *Qfi  T  *^^*  equity  will  now  raise  a  *trust,  because  formerly  it  would 
L  -I  have  created  a  use :  a  bargain  and  sale  for  5s.  consideration  still 
operates  by  way  of  conveyance  to  transfer  the  estate :  but,  should  the 
bargain  and  sale  be  void  as  such  for  want  of  an  indenture,  or  an  inden- 
ture duly  inrolled,  it  could  not  be  argued  that  the  agreement  at  the  pre- 
sent day  would  be  specifically  executed  upon  the  basis  of  a  trust.  It  may 
further  be  remarked,  that,  if  the  covenant  to  stand  seised  to  uses  were 
now  to  regulate  the  administration  of  trusts,  there  would  still  be  no 
ground  for  extending  the  xaWe^io  creditors,  who,  however,  it  is  admitted 
on  all  hands,  are  equally  entitled  to  the  benefit  of  meritorious  considera- 
tion. And  the  covenant  to  stand  seised  to  uses  extended,  we  must 
remember,  not  only  to  a  wife  and  child,  but  also  to  brothers,  nephews, 
and  cousins;  but  no  one,  at  the  present  day,  would  think  of  admitting 
the  same  latitude  in  the  execution  of  a  trust. 

With  respect  to  the  jurisdiction  of  the  court  in  snj-tplying  surrenders 
of  copyholds,  the  principle  upon  which  the  relief  is  founded  appears  to 
be  this,  that  as  the  heir  was  never  meant  by  the  law  to  take  otherwise 
than  in  default  of  the  ancestor's  will,  if  the  ancestor  manifest  any  inten- 
tion in  favour  of  a  meritorious  object,  the  court  will  not  suffer  the 
mere  want  of  form  to  carry  a  benefit  to  the  representative.  "  I  have 
looked,"  said  Lord  Alvanley,  "  at  all  the  cases  I  can  find,  upon  what 
prmeiple  this  court  goes  in  supplying  a  defect.  It  is  this — When- 
ever a  man,  having  power  over  an  estate,  whether  ownership  or  not,  in 
discharge  of  moral  or  natural  obligation  shows  an  intention  to  execute 
such  power,  the  court  will  operate  upon  the  conscience  of  the  heir  to 

iff)  Jones  V.  Morley.  12  Mod.  IGl. 


FORMALITIES    REQUIRED    TO    CREATE    A    TRUST.    145 

make  liim  perfect  this  intention.  This  is  not  to  be  confounded  with 
the  case  of  the  heir's  being  disinherited  by  a  will  of  freeholds  not  duly 
executed  :  there  is  no  will  at  all :  the  court  cannot  see  there  is  such  au 
instrument :  but  whenever  there  is  such  a  power,  it  has  been  executed." (/i) 

The  ground,  upon  which  the  court  aids  the  defective  execution  o/ 
powers,  will  be  found  upon  examination  to  be  precisely  that  upon  pjjcqy  -i 
*which  it  supplies  the  surrrenders  of  copyholds.  The  power,  to  L  -• 
the  extent  to  which  it  may  be  exercised,  is  regarded  in  equity  as  part  of 
the  dominion — as  a  portion  of  the  actual  estate  ;  and  the  donee  of  it  is 
pro  tanto  the  bona  fide  owner  of  the  property,  and  the  person  taking  in 
default  of  the  donee's  disposition  is  a  quasi  heir.(i)  The  only  distinction 
between  an  actual  heir  and  the  person  taking  in  default  of  the  power,  is 
this,  that  the  former  is  so  constituted  by  course  of  law,  while  the  latter  is  a 
quasi  heir  specially  appointed  by  the  settlor.  Thus,  in  aiding  the  de- 
fective execution  of  powers,  the  court,  says,  as  in  supplying  surrenders, — 
the  donee  of  the  power,  who  is  the  owner  of  the  property  to  the  extent 
of  that  power,  has  indicated  an  intention  of  providing  for  a  meritorious 
object;  and  the  person  taking  in  default  of  the  power,  who  is  a  kind  of 
heir,  shall  not,  through  want  of  form,  run  away  with  the  estate  from 
those  who  are  mu.ch  better  entitled. 

The  authorities  upon  the  subject  of  meritorious  consideration  are  some- 
what conflicting,  but  the  results  appear  to  be  these  :(/c) — 

It  is  clear  that  an  agreement  founded  on  meritorious  consideration 
will  not  be  executed  as  against  the  settlor  himself. (^) 

Indeed,  relief  in  such  a  case  would  offend  against  the  security  of  pro- 
perty ;  for  if  a  man  will  improvidently  bind  himself  by  a  complete  aliena- 
tion, the  court  will  not  unloose  the  fetters  he  hath  put  upon  himself,  but 
he  must  lie  down  under  his  own  folly  ;(m)  but  if  the  court  interpose 
where  the  act  is  left  incomplete,  what  is  it  but  to  wrest  property  from  a 
person  who  has  not  legally  parted  with  it  ?  Another  observation  that 
suggests  itself  is,  that  during  the  life  of  the  settlor  the  ground  of  the 
meritorious  consideration  scarcely  seems  to  apply ;  for  can  it  *be  p  ^^q^,  -, 
thought  to  be  the  duty  of  a  husband  to  endow  his  wife,  during  L  J 
the  coverture,  with  a  separate  and  independent  provision  ?  or  is  a  parent 
bound  by  any  natural  or  moral  obligation  to  impoverish  himself  (for  such 
a  case  may  be  supposed)  for  the  purpose  of  enriching  a  child  ?  or  has  a 
court  of  equity  the  jurisdiction  to  appropriate  a  specific  fund  to  creditors, 

(A)  Chapman  v.  Gibson,  3  B.  C.  C.  230  ;  and  see  Ellis  v.  Nimmo,  Lloyd  &  Goold, 
t.  Sugden,  341,  348. 

(t)  See  Holmes  v.  Coghill,  12  Ves.  213;  Coventry  v.  Coventry,  at  the  end  of 
Francis's  Maxims  of  Equity. 

{k)  See  Bonham  v.  Newcomb,  2  Vent.  365  ;  Leech  v.  Leech,  1  Ch.  Ca.  249  ; 
Fothergill  v.  Fothergill,  Freem.  256  ;  Sear  v.  Ashwell,  cited  Gordon  v.  Gordon,  3 
Sw.  411,  note;  Watts  v.  BuUas,  1  P.  W.  60;  Bolton  v.  Bolton,  Serjt.  Hill's  MSS. 
77  ;  S.  C.  3  Sw.  414,  note ;  Goring  v.  Nash,  3  Atk,  186  ;  Darley  v.  Darley,  3  Atk. 
399;  Hale  v.  Lamb,  2  Ed.  292  ;  Evelyn  v.  Templar,  2  B.  C.  C.  148  ;  Colman  v. 
Sarell,  1  Ves.  jun.  50  ;  S.  C.  3  B.  C.  C.'l2  ;  Antrobus  v.  Smith,  12  Ves.  39  ;  Rodgers 
V.  Marshall,  17  Ves.  294;  Ellis  v.  Nimmo,  Lloyd  &  Goold,  333;  see  cases  discussed, 
App.  No.  in. 

(I)  Antrobus  v.  Smith,  12  Ves.  39. 

(m)  Villers  v.  Beaumont.  1  Vern.  101,  per  Cur. 


146  LEW  IN    ON    THE    LAW    OF    TRUSTS,    ETC. 

when,  the  debtor  still  living,  the  presumption  of  law  is,  that  the  creditor 
can  obtain  satisfaction  of  his  debt  by  the  usual  legal  process  ?  It  is 
after  the  decease  of  the  settlor  that  meritorious  consideration  becomes 
such  a  powerful  plea  in  a  court  of  equity.  The  wife  and  the  children 
have  then  lost  the  personal  support  of  the  husband  and  parent,  and  who 
can  then  have  a  juster  claim  to  the  inheritance  of  his  property  ?  The 
creditor  is  then  barred  by  the  act  of  God  of  his  remedy  against  the 
debtor,  and,  should  the  assets  prove  insufficient,  how  but  by  the  assis- 
tance of  equity  can  he  hope  to  be  satisfied  his  demand  ?  Another 
objection  to  the  execution  of  a  voluntary  contract  against  the  settlor 
himself,  at  least  in  respect  of  land,  is  the  principle  expressed  by  Lord 
Cowper,  that  equity,  like  nature,  will  do  nothing  in  vain ;(«)  as  if  money 
be  directed  to  be  converted  into  land,  or  land  into  money,  the  devisee  or 
legatee  may  elect  to  take  the  property  in  its  original  state,  for,  should 
the  court  direct  an  actual  conversion,  the  devisee  or  legatee  might 
immediately  annul  the  order  by  resorting  to  a  re-conversion.  And  so, 
should  the  court  decree  the  specific  performance  of  a  contract  regarding 
realty  for  meritorious  consideration,  the  property  the  next  moment  might 
be  disposed  of  to  a  hona  fide  purchaser,  and  the  settlement  become  per- 
fectly nugatory.  Again,  if  the  imperfect  gift  can  be  enforced  against 
the  settlor  himself,  then  the  equitable  right  must  form  a  lien  upon  the 
property,  and,  upon  the  death  of  the  settlor,  his  heir  would,  in  all  events, 
be  bound  to  convey;  but,  even  in  aiding  the  defective  execution  of 
powers  and  supplying  surrenders  of  copyholds,  a  previous  inquiry  by  the 
master  is  invariably  directed,  whether  the  heir  of  the  settlor  has  any 
other  adequate  provision. 

r*QQn  ^^^  ^^^^  ^  contract  founded  on  meritorious  consideration 
L  -J  ^though  void  as  against  the  settlor  himself,  be  enforced  as  hetween 
parties  claiming  under  the  settlor?  It  seems  to  have  been  always 
admitted,  that  if  the  settlor  sell  the  estate  or  become  indebted,  the 
equity  of  the  cestui  qne  trust  claiming  on  the  ground  of  meritorious  con- 
sideration, will  not  bind  a  purchaser  or  creditors,  (o)  But  if  he  subse- 
quently make  a  voluntary  settlement,  or  die  without  disposing  of  the 
estate  by  act  inter  vivos,  will  the  equity  attach  as  against  the  volunteers 
under  the  settlement, (p)  or  a  devisee,(9)  or  the  heir  at  law  ?(/•)  The 
old  cases  would  rather  lead  to  the  conclusion  that  the  ao;reement  would 
be  specifically  executed,  with  however  the  saving  clause,  that  the  court 
would  not  have  enforced  it  even  as  against  these  classes  of  persons, 
where  they  too  could  plead  meritorious  consideration  (as  if  they  were 
the  children  of  the  settlor,)  without  a  previous  inquiry  by  the  master, 
whether  they  had  any  adequate  provision  independently  of  the  estate.(s) 

(n)  Seeley  V.  Jago,  1  P.  W.  389;  and  see  Bellingham  v.  Lowther,  1  Ch.  Ca. 
243  ;  but  see  Pulvertoft  v.  Pulvertoft,  18  Ves.  99. 

(o)  Bolton  V.  Bolton,  3  Serjt.  Hill's  MSS.  11  ■  S.  C.  3  Sw.  414,  note  ;  Goring  v. 
^ash,  3  Atk.  186 ;  Finch  v.  Earl  of  Winchelsea,  1  P.  W.  277 ;  and  see  Garrard  v. 
Lauderdale,  2  R.  &  M.  453,  454. 

(p)  Bolton  V.  Bolton,  ubi  supra.  fg)  ib 

shin  I^^'ves''" '?''"''''  ^  ^'  ^'  ^^ '  ^°""^  ^"  ^"^^^  ^  ^'^^^-  ^'^^  '  ^O'^g^''^  ^-  ^»^- 
(s)  See  Goring  v.  Nash  ;  Rodgers  v.  Marshall,  ubi  supra. 


FORMALITIES    REQUIRED    TO    CREATE    A    TRUST.    147 

At  the  present  day,  however,  it  seems  to  be  established  that  even  as 
against  vohinteers  claiming  under  the  settlor,  whether  with  or  without 
any  provision  aliunde,  a  voluntary  agreement  whether  under  seal  or  not, 
whether  coupled  with  a  valid  trust  of  other  property  settled  at  the  same 
time  or  not,  cannot  be  enforced  on  the  mere  ground  of  meritorious  con- 
sideration.(^) 

We  have  laid  down  the  rule  that  the  trust  will  be  enforced  when  it 
has  been  perfectly  created,  whether  there  was  transmutation  of  possession 
or  not.  It  is  equally  clear  that  a  trust  once  perfectly  created,  whether 
by  transmutation  of  possession  or  not,  cannot  be  defeated  by  the  subse- 
<(uent  act  of  the  settlor,  and  that  the  circumstance  of  the  legal  interest 
becoming  revested  in  the  settlor  is  immaterial. (w) 

*Again,  in  every  case  of  the  creation  of  a  trust,  it  is  ^Qinten-  r^-iarp 
tion  that  governs;  and  if  upon  a  consideration  of  all  the  circum-  L  J 
stances  the  court  is  of  opinion  that  the  settlor  did  not  mean  to  create  a 
trust,  then,  whether  there  was  transmutation  of  possession  or  not,  the 
court  will  not  raise  up  a  trust  where  none  in  fact  was  contemplated. 

Thus  where  a  person  wrote  a  letter  to  his  bankers,  and  directed  them 
to  transfer  certain  sums  into  the  names  of  himself  and  three  others,  as 
trustees  for  his  wife  during  her  life,  and  after  her  death  for  his  son 
during  his  minority,  and  the  transfers  were  effected  accordingly,  but  it 
appeared  in  evidence  that  the  settlor  never  communicated  the  facts  to 
the  other  trustees,  and  that  he  gave  the  directions  under  the  impression 
that  he  could  thus  avoid  the  legacy  duty,  it  was  held  that  the  fund  had 
never  been  placed  out  of  the  settlor's  power,  but  he  might  at  any  time 
have  revoked  the  directions,  and  therefore  the  money  was  to  be  consi- 
dered as  still  part  of  his  personal  estate. (z-) 

And  in  another  case,(?o)  where  a  testatrix  gave  a  legacy  of  100?.  to  A. 
and  after  making  her  will  drew  a  cheque  for  150?.  in  favour  of  B. ;  and 
at  the  same  time  gave  him  verbal  directions,  when  the  legacy  was  paid, 
to  make  up  to  the  legatee  the  difference  for  the  100?.  and  the  price  of  a 
share  in  the  London  and  Birmingham  Railway  Company,  and  the  sum  of 
150?.  was  transferred  by  the  bankers,  in  the  testatrix's  lifetime,  from  her 
account  to  the  account  of  B. ;  the  court  held  that  it  was  a  private 
arrangement  between  the  testatrix  and  B.,  and  meant  to  be  revocable 
like  the  will;  and  therefore,  that  B.  was  merely  A.'s  agent,  and  that  no 
trust  was  created. 

Again,  where  a  person  directed  his  agents  to  invest  a  sum  in  the  pur- 
chase of  4000?.  stock  in  the  names  of  himself  and  his  wife  in  trust  for 
his  son ;  and  the  agents  wrote  that  they  had  purchased  the  stock,  but 
that  it  could  not  be  done  as  he  desired,  as  the  bank  did  not  admit  notice 
of  any  trust  upon  their  books,  and  the  settlor  thereafter  treated  the 

{t)  Jefferys  v.  JefFerys,  1  Cr.  &  Ph.  138  ;  Aatrobus  v.  Smith,  12  Yes.  39 ;  Evelya 
V.  Templar,  2  B.  C.  C.  148 ;  Holloway  v.  Headington,  8  Sim.  325.  The  high 
authority,  however,  of  Lord  St.  Leonards  is  in  the  opposite  scale  ;  Ellis  v.  Nimmo, 
Lloyd  &  Goold,  t.  Sugd.  333.  ,r    ».  r.    r.,     n      o,- 

(m)  Ellison  V.  Ellison,  6  Yes.  656 ;  Smith  v.  Lyne,  2  Y.  &  0.  Oh.  Oa.  34o  ; 
Paterson  V.  Murphy,  11  Hare,  88.  r^     ,-,      ■,  n         ,-,-. 

(v)  Gaskell  v.  Gaskell,  2  Y.  &  J.  502.  {w)  Hughes  v.  Stubbs,  1  Hare,  4ib. 


148       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

stock  as  his  own  by  receiving  the  dividends;  the  court  held, 
L  ^^  J  *that  as  the  intention  had  not  been  carried  out,  no  trust  was 
created,  (x) 

Again,  where  a  person,  having  deposited  in  a  savings  bank  as  much 
money  in  his  own  name  as  the  rules  allowed,  deposited  a  further  sum  in 
his  name  as  trustee  for  his  sister,  but  without  making  any  communication 
to  her ;  and  it  appeared  that  he  made  such  deposit  with  a  view  of  evading 
the  rules  of  the  bank  and  not  to  benefit  his  sister ;  and  by  the  act  of 
parliament  he  retained  the  control  of  the  fund ;  the  court  held  that  no 
trust  was  created. (y) 

So  a  trust  for  payment  of  debts,  created  without  the  concurrence  of 
the  creditors,  is  construed,  though  there  be  transmutation  of  possession, 
not  as  conferring  an  interest  which  the  creditors  could  enforce  in  equity, 
but  as  an  arrangement  between  the  settlor  and  his  trustees  for  his  own 
private  convenience,  and  revocable  at  pleasure. (?) 

Upon  a  similar  principle,  it  has  been  held  that  a  grant  from  the  crown 
of  prizes  taken  in  war,  to  trustees  upon  trust  to  distribute  in  a  particular 
manner  amongst  the  captors,  gives  them  no  right  which  they  can  enforce 
in  equity ;  but  the  crown  may,  at  any  time  before  the  final  distribution, 
recall  its  directions  and  substitute  others. (o) 

So  an  ostensible,  but  not  actual  cestui  que  trust,  exists  where  the 
trustees  are  directed  to  pay  out  of  the  estate  the  costs  and  charges  of  the 
management  and  administration  of  the  trust ;  for  the  persons  employed 
by  the  trustees  have,  notwithstanding  that  declaration,  no  lien  upon  the 
trust  fund,  but  only  a  remedy  against  the  trustees  upon  the  ground  of 
the  contract.(6)  However,  if  there  be  sl  positive  direction  to  ih.eiv\i%iQQS 
to  employ  A.  as  auditor  or  receiver,  and  allow  him  a  proper  salary,  it  has 
RIO'^1  ^^^^  ^q\^  to  constitute  a  trust  in  favour  of  A.(f)  But  if  a  testa- 
L  "'J  tor  *merely  recominend  or  express  a  desire  that  his  trustees  should 
employ  A.  as  receiver,  the  question  is,  whether  the  words  used  amount 
to  a  trust,  or  only  to  an  expression  of  opinion  and  advice  :  and  to  disco- 
ver the  meaning,  the  court  examines  the  provisions  of  the  will,  and  if  it 
finds  that,  to  consider  the  words  as  a  trust  would  be  inconsistent  with 
the  general  character  of  the  will,  which  assumes  that  the  administration 
of  the  estate  is  to  be  unfettered  by  such  a  trust  in  favour  of  A.,  the  court 
comes  to  the  conclusion  that  the  words  were  meant  only  by  way  of  sug- 
gestion and  advice. ((^) 

{x)  Smith  V.  Ward,  15  Sim.  5G.  {y)  Field  v.  Lonsdale,  13  Bear.  78. 

(z)  Wallwynv.  Coutts,  3  Mer.  707;  S.  C.  3  Sim.  14:  Garrard  v.  Lord  Lau- 
derdale, 3  Sim.  1 ;  2  R.  &  M.  451.  This  subject  will  be  treated  of  under  the  head 
of  Trusts  for  the  payment  of  debts. 

(a)  Alexander  v.  Duke  of  Wellington,  2  R.  &  M.  35. 

(i)  Worrall  v.  Harford,  8  Ves.  4  :  Hall  v.  Laver,  1  Hare,  571. 

(c)  Williams  V.  Corbett,  8  Sim.  349  ;  Hibbert  v.  Hibbert,  3  Mer.  681  :  Consett 
T.  Bell,  1  Y.  &  C.  Ch.  Ca.  569. 

r  P?  F'\^^  ^-  I^awless,  1  L.  &  G.  t.  Sugd.  154  ;  reversed  1  Dr.  &  Walsh,  512  ; 
o  U.  &  F.  129;  LI.  &  G.  t.  Plunk.  559;  Finden  v.  Stephens.  2  Phill.  142:  Knott 
V.  Cottee,  2  Phill.  192. 


OF  THE  OBJECT  PROPOSED  BY  THE  TRUST.    149 

^CHAPTER  VI.  [*103] 

OF  THE  OBJECT  PROPOSED  BY  THE  TRUST. 

Trusts,  witli  reference  to  their  object,  may  be  distributed  into  Lawful 
and  Unlaivful;  tlie  former,  such  as  are  directed  to  some  legitimate  pur- 
pose ;  the  latter,  such  as  are  in  contravention  of  the  policy  of  the  law. 
It  is  almost  unnecessary  to  observe,  that,  in  creating  a  trust,  care  must 
be  taken  to  confine  it  within  allowable  bounds. 

SECTION  I. 

OP   LAWFUL   TRUSTS. 

As  a  general  rule,  the  intention  of  the  settlor,  whatever  it  may  be, 
shall  be  carried  into  effect. (a j 

And  if  the  object  of  the  trust  do  not  contravene  the  policy  of  the  law, 
the  mere  circumstance  that  the  same  end  cannot  be  effectuated  by  mould- 
ing the  legal  estate,  is  no  argument  that  it  cannot  be  accomplished 
through  the  medium  of  the  equitable.  The  common  law  has  interwoven 
with  it  many  technical  rules,  the  reason  of  which  does  not  appear,  or  at 
the  present  day  does  not  apply;  but  a  trust  is  a  thing  sui  generis,  and, 
where  public  policy  is  not  disturbed,  will  be  executed  by  the  court 
agreeably  to  the  settlor's  intention. 

In  legal  estates  a  fee  cannot,  except  by  executory  devise,  be  limited 
upon  a  fee  ;  but  this  modification  of  property  was  allowable  in  uses,  and 
by  the  statute  of  Hen.  8,  has  gained   admittance  *into  legal  r^^iQ^ 
estates,  and  is  now  matter  of  daily  occurrence  in  settlements  by  "- 
way  of  trust.  (Z>) 

At  law,  except  in  executory  devises,  a  freehold  contingent  limitation 
must  be  supported  by  a  freehold  particular  estate,  and  if  the  contingent 
limitation  do  not  vest  at  the  determination  of  the  particular  estate  it  is 
extinguished ;  but  to  trusts  the  rule  is  held  not  to  be  applicable,  or,  as 
the  doctrine  is  expressed,  the  legal  estate  in  the  trustees  is  sufficient  to 
support  all  the  equitable  interests.(c) 

At  law  a  chattel  real  can  by  tvill  only,  and  not  by  deed,  and  a  chattel 
personal  can  neither  by  will  nor  deed,  be  limited  to  one  person  for  life, 
with  remainder  to  another;  but  in  trusts  a  chattel  interest,  whether  real 
or  personal,  can  be  subjected  to  any  number  of  limitations,  provided  there 
be  no  perpetuity.  "  It  is  objected,"  said  Lord  Nottingham,  ''  that  a  lease 
for  years,  which  is  a  chattel,  will  not  bear  a  contingent  limitation  in 
regard  of  the  poverty  and  meanness  of  the  estate.     Now,  as  to  this  point, 

(a)  Attorney-General  v.  Sands,  Hard.  494,  per  Lord  Hale  ;  Pawlett  v.  Attorney- 
General,  lb.  469;  Bacon  on  Uses,  79;  Burgess  v.  Wheats,  1  Ed.  195,  per  bir  i. 
Clarke. 

(b)  Duke  of  Norfolk's  case,  3  Ch.  Ca.  35. 

{c)  Chapman  v.  Blisset,  Cas.  t.  Talb.  145 :  Hopkins  v.  Hopkins,  lb.  43. 


150  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

the  difference  between  a  cliattel  and  an  inheritance  is  a  difference  only 
in  words,  but  not  in  substance  or  reason,  or  in  the  nature  of  the  thing ; 
for  the  owner  of  a  lease  has  as  absolute  a  power  over  his  lease,  as  he 
that  hath  an  inheritance  hath  over  that ;  and  therefore,  when  no  perpe- 
tuity is  introduced,  nor  any  inconveniency  doth  appear,  there  no  rule  of 
law  is  broken.  It  hath  happened  sometimes,  and  doth  frequently,  that 
men  have  no  estates  at  all,  but  what  consist  in  leases  for  years  ;  now,  it 
were,  not  only  very  severe,  but,  under  favour,  very  absurd  to  say,  that  he 
who  has  no  other  estate,  but  what  consists  in  leases  for  years,  shall  be 
incapable  to  provide  for  the  contingencies  of  his  own  family."(f?) 

A  testator  had  devised  to  one  that  served  the  cure  of  a  church,  and  to 
all  that  should  serve  the  cure  after  him,  all  the  tithes,  profits,  &c. ;  but, 
as  the  successive  curates  were  not  a  body  corporate,  they  were  incapable 
of  taking  the  legal  estate :  however,  equity  carried  the  intention  into 
effect,  and  decreed  the  devisee  and  his  heirs  to  be  trustees  for  the  persons 
^^  -.  intended  *to  benefited.(e)  So  on  the  erection  of  a  chapel,  the 
L  J  benefit  of  the  endowment  cannot,  without  an  act  of  parliament, 
be  transmitted  at  law  to  the  successive  preachers  and  their  congregations, 
but  the  ordinary  mode  of  accomplishing  the  object  is  by  vesting  the  legal 
estate  of  the  property  in  trustees  (with  a  power  of  renewing  their  number 
on  vacancies  by  death,  &c.,)  upon  trust  to  permit  the  preacher  and 
congregation  for  the  time  being  to  have  the  use  and  enjoyment  of  the 
chapel. 

The  limitation  of  an  estate  to  the  poor  of  a  'parish,  would  at  Jaio  be 
void,(/)  because  the  rules  of  pleading  require  the  claimants  to  bring 
themselves  under  the  gift,  and  no  indefinite  multitude,  without  public 
allowance,  can  take  by  a  general  name  ;  but  by  way  of  trust  they  are 
capable  of  purchasing,  for  they  assert  no  title  in  themselves,  but  call 
upon  the  trustees  to  observe  the  dictates  of  good  conscience. ((7)  What 
persons  are  designated  by  the  description  of  "  poor  of  a  parish"  was  at 
«)ne  time  matter  of  considerable  doubt.  Lord  Eldon  thought,  that  the 
fund  should  be  administered  without  reference  to  parochial  relief;  for 
assistance  might  be  given  to  a  pauper  without  exonerating  the  rich  from 
their  usual  contribution  to  the  rates — to  the  relief,  which  the  law  had 
provided,  further  relief  might  be  added,  which  the  parish  was  not  bound 
to  afford. (/i)  Besides,  the  appropriation  of  the  fund  to  the  poor  not  in 
receipt  of  parochial  relief  might  still  have  the  effect  of  conferring  a  bene- 
fit on  the  rich  ;  for  persons  who  could  not  otherwise  have  maintained 
themselves  might,  by  means  of  the  charity,  be  prevented  from  seeking 
assistance  from  the  rate.({)  However,  it  has  been  determined  in  several 
cases,  and  seems,  therefore  to  be  now  settled,  that  the  charity  must  be 
confined  to  those  not  in  the  receipt  of  parochial  relief. (^) 

{d)  See  Duke  of  Norfolk's  case,  3  Ch.  Ca.  32. 

(c)  Anon,  case,  2  Vent.  349.  (/)  Co.  Lit.  3,  a. 

{g)  Gilb.  on  Uses,  44. 

{h)  Attorney-General  v.  Corporation  of  Exeter,  2  Russ.  51-54. 

(!)  See  S.  C.  3  Russ.  397. 

{k)  Attorney-General  v.  Corporation  of  Exeter,  2  Russ.  47;  S.  C.  3  Russ.  395; 
Attorney-General  v.  Wilkinson,  1  Beav.  372  ;  Attorney-General  v.  Bovill,  M.  R. 
1  July,  1839.     But  see  Attorney-General  v.  Bovill,  1  Phill.  768,  where  Lord  Cot- 


OF  THE  OBJECT  PROPOSED  BY  THE  TRUST.    ]51 

*By  the  59  Geo.  3,  c.  12,  s.  17,  it  is  enacted,  "That  all  r=^-,Qp-| 
buildings,  lands,  and  hereditaments  which  shall  be  purchased,  L  J 
hired,  or  taken  on  lease  by  the  churchwardens  and  overseers  of  the  poor 
of  any  parish,  by  the  authority  or  for  any  of  the  purposes  of  that  act, 
shall  be  conveyed,  demised  and  assured  to  the  churchwardens  and  over- 
seers of  the  poor  of  every  such  parish  respectively  and  their  successors, 
in  trust  for  the  parish ;  and  such  cliurcliwardens,  and  overseers,  and 
their  successors,  shall  and  may,  and  they  are  hereby  empowered,  to  ac- 
cept, take,  and  hold  in  the  nature  of  a  hody  corporate,  for  and  on  hehalf 
of  the  said  parish,  all  such  buildings,  lands,  and  hereditaments,  and 
also  cdl  other  buildings,  lands,  and  hereditaments  belonging  to  such 
parish." 

By  virtue  of  this  enactment,  all  hereditaments  belonging  to  the  parish 
at  the  time  of  the  act,  or  subsequently  acquired,  whether  for  a  chattehA 
or  freehold  interest;  and  though  originally  conveyed  to  express  trustees 
for  parish  purposes,  if  it  be  unknown  or  uncertain  in  whom  the  legal 
estate  is  now  vested  ;(m)  or  generally  where  it  is  unascertained  in  whom 
the  legal  estate  is  outstanding,  but  the  parish  have  exercised  all  the  rights 
of  ownership,  and  the  property  belongs  to  them  in  the  popular  sense  ;(«) 
are  now  transferred  to  the  churchwardens  and  overseers  of  the  parish, 
not  indeed  as  a  corporation  and  having  a  common  seal,(o)  but  as  persons 
taking,  by  parliamentary  succession,  in  the  nature  of  a  corporation. (p) 

The  act  does  not  extend  to  copyholds, (g')  nor  to  freeholds  of  which  the 
trusts  are  not  exclusively  for  the  parish,  but  also  embrace  other  objects  ;(?■) 
nor  to  lands  vested  in  existing  trustees,  and  who  are  actually  in  discharge 
of  their  duties  in  that  *character.(s)  However,  though  a// the  r^-ir,>j-i 
trusts  must  be  for  the  parish,  they  may  be  directed  to  some  L  J 
special  trust,  if  exclusively  parochial,  as  a  trust  for  aiding  the  church- 
rates,(/)  or  furnishing  a  poor-house, (u)  or  for  the  relief  of  the  poor  of  the 
parish,  whether  the  objects  of  the  charity  be  or  not  held  to  include 
those  in  the  receipt  of  parochial  relief;  for  if  non-recipients  only  of 
parochial  relief  are  to  be  admitted,  the  parish  is  still  benefited  by  keep- 
ing that  class  of  poor,  by  means  of  the  charity,  off  the  parish  books,  (y) 

tenham  is  reported  to  have  said,  "  I  am  inclined  to  think  that  the  right  course  is, 
to  administer  the  charity,  and  leave  to  chance  to  what  extent  it  may  ojjerate  to  the 
relief  of  the  poor-rates."  The  decree,  however,  seems  in  the  main  to  be  in  ac- 
cordan9e  with  the  previous  decisions;  and  see  Attorney-General  v.  Blizard,  21 
Beav.  233.  (l)  Alderman  v.  Neate,  4  Mees.  &  Wei.  704. 

(m)  Doe  V.  Hilej',  10  B.  &  Cr.  885  ;  and  see  Churchwardens  of  Deptford  v. 
Sketchley,  8  Q.  B.  Rep.  394. 

{n)  Doe  V.  Terry,  4  Ad.  &  Ell.  274;  Doe  v.  Cockell,  lb.  478. 

(o)  Ex  parte  Annesley,  2  Y.  &  C.  350. 

Xp)  Smith  v.  Adkins,  8  Mees.  &  Wei.  362. 

{q)  Attorney-General  v.  Lewin,  8  Sim.  3G6  ;  In  re  Paddington  Charities,  lb.  629. 

(r)  Allason  v.  Spark,  9  Ad.  &  Ell.  255  ;  Attorney-General  v.  Lewin,  8  Sim.  366  ; 
In  re  Paddington  Charities,  lb.  629. 

(s)  Churchwardens  of  Deptford  v.  Sketchley,  8  Q.  B.  Rep.  394,  overruling  Rum- 
])all  V.  Munt,  lb.  382  ;  and  see  Gouldsworth  v.  Knight,  11  M.  &  W.  337. 

(?)  Doe  V.  Hiley,  10  B.  &  Cr.  885  ;  Doe  v.  Terrv,  4  Ad.  &  Ell.  274  ;  and  see  Al- 
lason v.  Stark,  9  Ad.  &  Ell.  266,  267  ;  Doe  v.  Cockell,  4  Ad.  &  Ell.  478. 

{u)  Alderman  v.  Xeate,  4  Mees.  &  Wei.  704. 

(r)  Ex  parte  Annesley,  2  Y.  &  G.  350  ;  Churchwardens  of  Deptford  v.  Sketch- 
ley,  8  Q.  B.  Rep.  394. 


152       LEW  IX  ox  THE  LAW  OF  TKUSTS,  ETC. 

Again,  an  advoioson  may  be  vested  in  trustees,  upon  trust  for  the 
a  parishioners  and  inhabitants,''  that  is,  the  parishioners,  being  inhabi- 
tants(w)  of  a  parish. 

A  trust  of  this  kind  is  not  considered  a  charity,  but  is  administered 
on  the  footing  of  any  ordinary  trust,  and  application  must  be  made  to 
the  court  not  by  way  of  information,  but  by  bill. (a;) 

From  the  infinite  mischiefs  arising  from  popular  election, (_y^  the  court, 
where  the  settlement  does  not  expressly  give  the  election  to  the  parishioners, 
or  usage  has  not  put  such  a  construction  upon  the  instrument,  will  infer 
the  donor's  intention  to  have  been,  that  the  trustees  should  themselves 
exercise  their  discretion  in  the  election  of  a  clerk  for  the  benefit  of  the 
r*i  OST  P^ris^  j(~)  ^^^  ^^  ^^^  language  of  the  instrument,  or  the  ^''evidence 
L  J  of  common  usage,  prevent  such  a  construction,  then  the  parishion- 
ers, as  the  cestuis  que  trust  and  beneficial  owners  of  the  advowson,  will 
be  entitled  to  elect,  and  the  trustees  will  be  bound  to  present  the  per- 
son upon  whom  the  choice  of  the  electors  shall  fall.(«)  Had  the  point 
been  unprejudiced  by  decision.  Lord  Eldon  doubted  whether  the  court 
could  execute  such  a  trust,  at  least  otherwise  then  cy  pres  ;(6)  but,  as 
authority  has  now  clearly  settled  that  the  court  must  undertake  the 
trust  notwithstanding  the  difficulties  attending  it,  the  only  subject  for 
inquiry  is,  in  what  manner  a  trust  of  this  kind  shall  be  executed. 

The  expression  '<  parishioners  and  inhabitants"  is  in  itself  extremely 
vague,  and  has  never  acquired  any  very  exact  and  definite  meaning  ;(c) 
but,  this  doubt  removed,  another  question  to  be  asked  is,  are  women, 
children,  and  servants,  who  are  parishioners  and  inhabitants,  to  be 
allowed  to  vote  ?  It  seems  the  extent  of  the  terms  must  be  taken  secun- 
dum suhjeciam  materiam,  with  reference  to  the  nature  of  the  privilege 
the  cestuis  que  trust  are  to  exercise,(^/)  and,  if  so,  none  should  be  ad- 
mitted to  vote,  who,  from  poverty,  infancy,  or  coverture,  are  presumed 
not  to  have  a  will  of  their  own.(e)  In  a  case,  where  the  election  was 
given  to  "the  inhabitants  and  parishioners,  or  the  major  part  of  the 
chiefest,  and  discreetest  of  them,"  it  was  held  that,  by  chic/est,  was  to 
be  understood  those  who  paid  the  church  and  poor  rates,  and  by  discreet- 

(w)  Fearon  v.  Webb,  14  Ves.  24,  per  Chief  Baron  M'Donald  ;  lb.  26,  per  Baron 
Graham;  Wainwright  v.  Bagshaw,  Rep.  t.  Hardwicke,   by  Ridg.  56,  per  Lord 

Hardwicke. 

(x)  Attorney-General  v.  Forster,  10  Ves.  344  ;  Attorney  General  v.  Newcombe, 
14  Ves.  1 ;  Fearon  v.  Webb,  lb.  19. 

(y)  See,  in  addition  to  the  cases  cited  in  the  next  note,  the  observations  of  Vice- 
Chancellor  Knight  Bruce,  Attorney-General  v.  Cuming,  2  Y.  &  C.  Ch.  Ca.  158, 
and  19  k  20  Vict.  cap.  50,  authorizing  the  sale  of  advowsons  held  upon  trust  for 
parishioners. 

(z)  See  Edenborough  v.  Archbishop  of  Canterbury,  2  Russ.  106,  109  ;  Attorney- 
General  V.  Scott,  1  Ves.  413  ;  Attorney-General  v.  Foley,  cited  lb.  418. 

(a)  Attorney-General  v.  Parker,  3  Atk.  577,  per  Lord  Hardwicke  ;  Attorney- 
General  V.  Forster,  10  Ves.  338,  341,  per  Lord  Eldon  ;  Attorney-General  v.  New- 
combe, 14  Ves.  6,  1,per  eundem. 

(b)  Attorney-General  v.  Forster,  10  Ves.  340,  342. 

(c)  See  Attorney-General  v.  Parker,  3  Atk.  577  ;  Attorney-General  v.  Forster, 
10  Ves.  339,  342  ;  see  further  as  to  the  ClerkenweU  case,  Carter  v.  Cropley,  26  L. 
J.  N.  S.  (Ch.)  246. 

{d)  See  Attorney-General  v.  Forster,  10  Ves.  339. 
,    (e)  See  Fearon  v.  Webb.  14  Ves.  27. 


OF  THE  OBJECT  PROPOSED  BY  THE  TRUST.    153 

ci^t,  those  who  had  attained  the  age  of  twenty-one ;(/)  But  Lord  Hard- 
wicke  said,  that,   even  where   "  parishioners   and   inhabitants"   stood 
tcithout  any  restriction  at  all,  it  was  a  reasonable  limitation  to  confine 
the  meaning  to  those  who  paid  scot  and  lot,  that  is,  who  paid  to  church 
and  poor ;  {(j)  and  so,  in  a  previous  case,  it  seems  *his  lordship  pj^Qg-i 
had  actually  determined. (A)     The  Court  of  Exchequer  adopted  L         J 
a  similar   construction  in  the    Clerkemoell  case,[i)  though  it  does   not 
appear  how  far  the  court  was  guided  in  its  judgment  by  the  evidence 
of  the  common  usage  •,(Jc)  and  Lord  Eldon,  in  a  subsequent  ease,  restrict- 
ed the   election   to  the  same  class, 0  but   his    lordship's    decree   was 
possibly  founded  on  the  circumstance,  that  those  only  who  paid  scot  and 
lot  were  admitted  to  the  vestry  ;(m)  (not  that,  for  the  purpose  of  election, 
the  vestry  is  the  representative  of  the  parish,(?i)  but  in  one  of  the  oldest 
documents  the  trust  was  said  to  be  for  "  the  parishioners  of  the  said 
parish  at  a  vestry  or  vestries  to  he  from  time  to  time  liolden  for  the  said 
2}arish."(o)  )     But,  where  the  instrument  creating  the  trust  contains 
merely  the  words  "  parishioners  and  inhabitants,"  the  court  will  not 
confine  the  privilege  of  voting  to  those  paying  scot  and  lot,  if  it  appears 
from  constant  usage  that  the  terms  are  to  be  taken  in  a  wider  and  more 
extensive  signification,  to  include,  for  instance,  all  househeepers,  whether 
paying  to  the  church  and  poor  or  not.(p)     By  persons  paying  to  the 
church  and  poor  must  be  understood  persons  liahle  to  pay,  though  they 
may  not  have  actually  paid  5(5')  but  it  seems  to  be  a  necessary  qualifica- 
tion that  they  should  have  been  rated,{r)  unless,  perhaps,  the  name  has 
been  omitted  by  mistake,(s)  or  there  is  the  taint  of  fraud. («) 

With  respect  to  the  mode  in  which  the  votes  are  to  be  taken,  it  is  clear 
that  the  election  cannot  be  conducted  by  ballot,  not  only  on  the  general 
principle  that  the  ballot  is  a  form  of  proceeding  unknown  to  the  common 
law  of  England,(w)  but  also  *on  the  ground,  that  the  trustees  r*]^;^Q-| 
have  a  right  to  be  satisfied,  that  the  person  they  present  to  the  L  ^ 
bishop  has  been  the  successful  competitor ;  whereas  in  election  by  ballot 
there  are  no  means  of  ascertaining  for  whom  each  particular  elector 
voted. («)  The  choice  of  the  candidate  must  therefore  be  determined  by 
one  of  the  modes  known  to  the  common  law,  viz.  either  by  poll  or  a  show 
of  hands.(ic)     However,  the  cestuis  que  trust  may  expresshj a^ree  among 

(/)  Fearon  v.  Webb,  14  Ves.  13. 

(g)  Attorney-General  v.  Parker,  3  Atk.  5V7  ;  S.  C.  1  Ves.  43. 

(A)  Attorney-General  v.  Davy,  cited  lb. ;  S.  0.  2  Atk.  213. 

(j)  Attorney-General  v.  Rutter,  stated  2  Russ.  101,  note. 

{k)  See  Attorney-General  v.  Forster,  10  Ves.  345. 

(l)  Eslenborongh  v.  Archbishop  of  Canterbury,  2  Russ.  93. 

Im)  See  lb.  110. 

(n)  Attorney-General  v.  Parker,  3  Atk.  578,  per  Lord  Hardwicke ;  Attorney- 
General  V.  Forster,  10  Ves.  340,  344,  per  Lord  Eldon. 

(0)  See  Edenborough  v.  Archbishop  of  Canterbury,  2  Russ.  94. 

(p)  Attorney-General  v.  Parker,  3  Atk.  576  ;  S.  C.  1  Ves.  43. 

(q)  See  Attorney-General  v.  Forster,  10  Ves.  339,  346. 

(r)  Edenborough  v.  Archbishop  of  Canterbury,  2  Russ.  110. 

(s)  Edenborough  v.  Archbishop  of  Canterbury,  2  Russ.  110. 

(t)  S.  C.  lb.  111.  (m)  Faulkner  v.  Elger,  4  Barn.  &  Cress.  449. 

(v)  Edenborough  v.  Archbishop  of  Canterbury,  2  Russ.  105,  108,  109,  per 
Lord  Eldon. 

(«•)  See  lb.  106,  110. 


154       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

themselves  that  they  will  abide  by  the  declaration  of  the  result  of  the 
ballot,  and  will  ask  no  questions  how  the  individual  votes  were  given ;  or 
such  a  contract  may  be  inferred  from  long  and  clear  antecedent  usage.(.r) 
But  it  is  said  an  agreement  of  this  kind  can  apply  only  to  each  particular 
election  as  it  occurs,  for  any  one  parishioner  has  a  right  to  insist  that  the 
coming  election  shall  be  conducted  on  a  different  principle ;  it  would  be 
■a  bold  thing  to  say,  that  the  parish  of  to-day  could  bind  the  parish  of  to- 
morrow to  deviate  from  the  original  and  legitimate  mode.(?/)  A  contract 
between  the  cestuis  que  trust  in  favour  of  the  ballot  is  also  open  to  the 
objection,  that  the  right  of  voting  in  the  election  of  a  clerk  is  a  privilege 
coupled  with  a  puUic  duty,  and  it  may  be  doubtful  whether  a  court  of 
equity  would  enforce  the  result  of  an  election,  where  it  cannot  be  ascer- 
tained whether  the  voters,  in  the  exercise  of  their  right,  have  fairly  and 
honestly  discharged  that  duty. (2) 

Again,  upon  principles  founded  on  the  Law  of  Tenure,  the  freehold  in 
jjrcesenti  must  be  vested  in  some  person  m  esse  ;  but  under  the  system  of 
trusts,  which  are  wholly  independent  of  feudal  rules,  a  settlor  may  direct 
the  accumulation  of  rents  and  profits,  and  it  docs  not  vitiate  the  trust 
that  there  is  no  ascertained  owner  of  the  equitable  freehold  in  posses- 
sion, (a) 

But  trusts  for  accumulation  must  be  confined  within  the  limits  esta- 
blished against  perpetuities.  A  settlor  is  permitted  (by  analogy  to  the 
duration  of  a  regular  entail  under  a  common  law  conveyance)  to  fetter 
l-jj,^  ^  ^  ^  the  alienation  of  property  for  a  life  or  *lives  in  being  and  twenty- 
«-  -I  one  years ;  and  the  power  of  preventing  the  enjoyment  of  property, 
by  directing  the  accumulation  of  the  annual  proceeds,  is  restricted  to  the 
same  period.  If  the  trust  exceed  this  boundary,  it  is  void  in  toto, 
and  cannot  be  cut  down  to  the  legitimate  extent.(i)  Thus,  where  an 
estate  was  limited  to  trustees  for  a  term  of  1000  years,  and  subject 
thereto  in  strict  settlement,  and  the  trusts  of  the  term  were,  as  often  as 
any  tenant  for  life  or  in  tail  should  be  a  minor,  to  accumulate  the  rents, 
and  apply  them  in  discharge  of  incumbrances,  and  to  pay  the  surplus  to 
the  first  tenant  for  life,  or  in  tail,  who  should  attain  twenty-one,  the 
trust  was  declared  void  dh  initio,  as  the  minorities  of  the  successive 
tenants  for  life  and  in  tail  might  travel  through  a  century. (c) 

But  there  is  no  accumulation,  and  therefore  no  danger  of  a  perpetuity, 
where  the  rents  are  applicable  as  a  vested  interest  dc  anno  in  annum. 
Thus,  where  a  testatrix  devised  a  term  which  had  33  years  to  run,  upon 
trust,  from  time  to  time,  to  lay  out  the  profits  in  the  purchase  of  lands 
to  be  settled  on  A.  for  life,  remainder  to  B.  in  tail,  remainders  over,  in- 
asmuch as  the  cestuis  que  trust  could  at  anytime  call  for  the  investment 
of  the  rents  in  land;  and  when  B.  attained  his  age,  and  could  suffer  a 

{x)  See  supra,  note  (i'),  105,  106,  108,  109. 

(y)  See  lb.  106.  (z)  See  lb.  109. 

(a)  See  Fearne's  C.  R.  by  Butler,  537,  note  {x). 

{b)  Marshall  v.  Holloway,  2  Sw.  432  ;  Lord  Southampton  v.  Marquis  of  Hert- 
tord,  2  V.  &  B.  54  ;  Curtis  v.  Lukin,  5  Beav.  147  ;  Boughton  v.  James,  1  Coll.  26  ; 
oAn  ■  ^'^  ^'^y^'^h  ^  ^0"se  of  Lords  Cases,  p.  406 ;  Browne  v.  Stoughton,  14  Sim. 
369  ;  Scarisbnck  v.  Skelmersdale,  17  Sim.  187  ;  Turvin  v.  Newcome,  3  K.  &  J.  16. 

(c)  Lord  Southampton  v.  Marquis  of  Hertford,  2  V  &  B   54 


OF  THE  OBJECT  PROPOSED  BY  THE  TRUST.    I55 

recovery,  A.  and  B.  were  entitled  to  call  for  tlie  assignment  of  the  lease ; 
it  was  held  the  trust  was  good.(cZ)  And,  in  another  case,  where  the 
rents  were  directed  to  be  accumulated,  at  compound  interest,  until  they 
amounted  to  a  sufficient  sum  to  discharge  two  incumbrances  on  the  estate, 
amounting  to  2500/.  each;  and  then  to  be  further  accumulated  until 
they  amounted  to  a  sufficient  sum  to  discharge  two  other  incumbrances 
of  4000?.  and  2000/. ;  Baron  Graham  observed,  "  there  was  no  accumu- 
lation for  the  purpose  of  suspension." (e)  In  *this  case  however,  ^^-. ,  ^-, 
there  seems  to  have  been  strictly  and  substantially  an  accumula-  •-  "'J 
tion.  It  is  possible  that  the  amount  of  the  annual  rents  being  ascertained, 
and  the  incumbrances  known,  it  was  found  that  the  time  required  for 
discharging  the  incumbrances  would  not  exceed  the  proper  limits. 

In  Curtis  v.  Lukin^/)  a  testator  gave  to  the  trustees  certain  lease- 
holds in  Church-street,  which  had  more  than  60  years  to  run,  upon  trust 
for  A.  for  life,  with  remainder  to  her  children,  and  in  default  of  children 
to  B.  He  then  gave  other  leaseholds  to  the  same  trustees  upon  trust  to 
accumulate  the  rents  until  the  lease  in  Church-street  sliould  he  nearly 
expired,  and  then  to  apply  a  competent  sum  in  the  renewal  of  that  lease 
for  the  benefit  of  the  parties  entitled  thereto  under  the  will,  and  the 
residue  of  the  accumulations  he  gave  to  A.,  B.,  and  C.  The  lessor  of 
the  premises  in  Church-street  was  under  no  obligation  to  renew,  and 
therefore  the  sum  to  be  paid  if  a  renewal  could  be  obtained  was  uncer- 
tain. It  was  argued,  that  all  interests  must  be  vested  within  a  life  in 
being  and  21  years,  so  that  there  was  no  perpetuity ;  but  it  was  answered, 
that  the  amounts  of  the  respective  interests  were  uncertain  until  the 
renewal  was  effected ;  and  if  all  the  parties  could  not  agree  in  the  distri- 
bution of  the  fund,  the  accumulation  must  proceed,  and  the  court  was 
of  opinion  that  the  trust  was  void. 

The  39  &  40  Geo.  8,  c.  98,  commonly  called  the  Thellusson  Act,  or 
Lord  Loughborough's  Act,  has  now  further  restricted  the  period  of  accu- 
mulation, by  declaring  that  "  no  person  shall,  by  deed,  surrender,  will, 
codicil,  or  otherwise  howsoever,  settle  or  dispose  of  any  real  or  personal 
property,  so  as  that  the  rents,  issues,  profits,  or  produce  thereof  shall  be 
wholly  or  partially  accumulated  for  any  longer  period  than  the  life  or 
lives  of  any  such  grantor  or  grantors,  settlor  or  settlors  ;  OR  the  term  of 
21  years  from  the  death  of  any  such  grantor,  settlor,  devisor,  or  testa- 
tor ;  OR  during  the  minority,  or  resj^ective  minorities,  of  any  person  or 
persons  who  shall  be  living,  or  in  ventre  sa  mere,  at  ^the  time  ^^^^^^ 
of  the  death  of  such  grantor,  devisor,  or  testator  ;  OR  during  the  L  -• 
minority,  or  respective  minorities,  of  any  person  or  persons  icho  tinder 
the  uses  or  trusts  of  the  deed,  surrender,  will,  codicil,  or  other  assurance 
directing  such  accumulations,  would,  for  the  time  heing,  if  of  full  age, 

{d)  Phipps  T.  Kelynge,  2  V.  &  B.  57,  note  (b). 

[e)  Bacon  v.  Proctor,  1  T.  &  R.  31 ;  and  see  Bateman  v.  Hotchkin,  10  Beav. 
426,  where  the  trust  was  supported  on  the  ground  that  there  was  no  perpetuity, 
but  that  on  the  eldest  son  attaining  twenty-one,  he  could  dispose  of  the  estate, 
and  stop  the  accumulation ;  and  see  Briggs  v.  Earl  of  Oxford,  1  De  Gex,  M.  &  G. 
363. 

(/)  5  Beav.  147. 


156       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

he  entitled  unto  the  rents,  issues,  and  profits,  or  the  interest,  dividends, 
or  annual  produce  so  directed  to  be  accurmdated." 

The  following  points  have  been  resolved  upon  the  construction  of  this 
act : — 1.  The  statute  embraces  simple  as  well  as  compound  accumula- 
tion. By  the  former  is  meant  the  collection  of  a  principal  sum  by  the 
mere  addition  of  the  annual  proceeds,  while  the  interest  upon  the  accu- 
mulating fund  either  results  undisposed  of  to  the  settlor  or  his  represen- 
tative, or  passes  to  the  residuary  devisee  or  legatee.  Compound  accu- 
mulation is,  where  not  only  the  rents  are  added  together,  but  the  fund 
is  further  increased  by  the  interest  upon  the  rents.  2.  The  act  applies, 
though  the  accumulating  fund  be  from  the  first  a  vested  interest,  so  that  not 
the  right  to  the  enjoyment,  but  only  the  actual  enjoyment,  is  suspended  ; 
as  where  a  settlor  directs  the  rents  to  be  accumulated  for  a  life  in  being 
and  twenty-one  years,  for  raising  a  certain  sum  for  A.,  to  be  paid  to  him 
on  the  completion  of  the  accumulation ;  so  that  A.  has  a  vested  interest 
in  the  rents  as  they  arise,  but  the  settlor  having  directed  simple  accu- 
mulation only,  the  interest,  on  the  rents  is  applicable  to  other  purposes, 
and  A.  cannot  call  for  the  transfer  till  the  rents  have  amounted  to  the 
requisite  sum.  3.  An  accumulation  can  be  directed  for  one  only  of 
the  periods  allowed  by  the  statute,  and  not  for  two  of  the  periods  com- 
bined.(</)  4.  The  accumulation,  though  directed  to  commence  not  at 
the  testator's  death,  but  at  some  subsequent  period,  must  still,  terminate 
at  the  expiration  of  twenty-one  years  from  the  testator's  death, (A)  and 
the  term  of  twenty-one  years  is  to  be  reckoned  exclusive  of  the  day  on 
which  the  testator  died.(t)  5.  If  the  trust  exceeds  the  limits  prescribed 
r*nJ.i  ^y  *^^^  statute,  but  not  the  limits  allowed  *by  the  common  law, 
L  -I  the  accumulation  will  be  established  to  the  extent  permitted  by 
the  act,  and  will  be  void  for  the  excess  ouly.^A-) 

A  leading  case  upon  this  subject  is  Shaw  v.  Rhodes. (Z)  A  testator, 
having  three  children,  devised  all  his  estates  to  trustees  upon  trust  to 
pay  them  certain  annuities,  and  subject  thereto,  1,  upon  trusts  to  accu- 
mulate the  rents  for  the  benefit  of  his  grandchildren,  born  or  to  be  born, 
until  the  youngest  should  attain  twenty-one,  at  which  time  the  accumu- 
lations should  be  distributed  amongst  the  grandchildren  then  living ;  2, 
and  in  case  any  of  his  three  children  should  be  living  at  the  time  the 
youngest  grandchild  attained  twenty-one,  he  directed  the  rents  to  be 
further  accumulated  till  the  death  of  the  survivor  of  the  children,  the 
accumulation  to  be  divided  between  the  grandchildren  then  living ;  3, 
and  after  the  decease  of  the  survivor  of  the  children,  that  his  estates 
"  should  stand  charged  for  twenty  years  with  the  payment  (out  of  two- 
third  parts  of  the  rents)  of  so  much  money  as  would  in  fifteen  years  make 
30,000L  ;  the  said  sum,  and  the  interest  and  produce  thereof,  to  be 
divided  amongst  his  grandchildren  who  should  live  to  attain  twenty-one ;" 

[g)  Wilson  v.  Wilson,  1  Sim.  288,  N.  S. 

(h)  Attorney-General  v.  Poulden,  3  Hare,  555. 

(i)  Gorst  V.  Lowndes,  11  Sim.  434. 

{k)  Griffiths  V.  Vere,  9  Ves.  127  ;  Longdon  v.  Simson,  12  Ves.  295  ;  Haley  v. 
Bannister,  4  Mad.  275  ;  Shaw  v.  Rhodes,  1  M.  &  C.  135  ;  Crawley  v.  Crawley,  7 
feim.  427  ;  Attorney-General  v.  Poulden,  3  Hare,  555. 

{I)  1  M.  k  C.  135;  S.  C,  as  Evans  v.  Hellier,  5  CI.  &  Fin.  114. 


OF  THE  OBJECT  PROPOSED  BY  THE  TRUST.    157 

and,  subject  thereto,  lie  devised  the  estates  to  his  eldest  son  iu  tail,  with 
remainder  over.  The  testator  died  in  1812.  The  youngest  grandchild 
attained  his  age  in  1830.  The  surviving  child  died  in  1831.  The 
first  accumulation,  which  expired  in  1830,  and  the  second  accumu- 
lation, which  expired  in  1831,  were  both  established,  as  falling  within 
twenty-one  years  from  the  testator's  decease.  With  respect  to  the 
third  accumulation,  the  clause  was  construed  to  mean  that  1500/.  per 
annum  (if  two-thirds  of  the  rents  would  yield  so  much)  should  be 
laid  by  for  fifteen  years,  and  if  the  30,000?.  were  not  then  raised, 
the  like  accumulation  should  be  made  for  five  years  more,  till  the 
30,000/.  should  be  completed ;  that  the  proceeds  arising  out  of  the  rents, 
until  the  30,000/.  should  be  raised,  were  not  meant  to  fall  into  the  accu- 
mulating *fund,  and  increase  the  capital,  but  should  pass  to  the  p^^j^^-i 
residuary  devisee  of  the  estates.  It  was  urged  that  the  act  eon-  L  J 
templated  a  compound  accumulation  only,  and  not,  as  this  was,  a  simple 
accumulation  ;  and  that  here  the  right  to  the  rents  was  not  suspended, 
but  each  instalment,  as  it  was  paid,  became  a  vested  interest :  but  the 
court  held,  that  allowing  the  annual  instalments  to  be  vested  interests, 
yet,  as  the  produce  of  the  fund,  till  the  30,000/.  should  be  completed, 
would  belong  to  other  parties,  the  rents  until  that  time  were  not  actually 
recoverable  by  the  legatees,  and  must  therefore  be  considered  as  accu- 
mulated within  the  act.  The  trust,  therefore,  was  supported  up  to  1833, 
the  expiration  of  twenty-one  years  from  the  testator's  death,  and  for  the 
residue  was  declared  void. 

In  another  case  a  testator  gave  his  general  personal  estate  to  trustees 
in  trust  for  all  the  children  of  A.  and  B.  (who  both  outlived  twenty-one 
years  from  the  testator's  death,)  to  be  a  vested  interest  in  the  children, 
being  sons,  at  their  ages  of  twenty-one  years,  or,  being  daughters,  at 
those  ages,  or  on  their  days  of  marriage,  with  a  clause  of  survivorship  ; 
but  the  shares  were  not  to  be  paid  until  the  death  of  the  survivor  of  A. 
and  B.,  and  the  testator  appointed  C.  residuary  legatee.     An  accumula- 
tion was  thus  imjylied  until  the  death  of  the  survivor  of  A.  and  B.,  as  up 
to  that  time  it  could  not  be  ascertained  how  many  children  would  be 
born  ;  but  at  the  expiration  of  twenty-one  years  from  the  testator's  death 
the  accumulation  would  be  void,  unless  it  fell  under  some  exception  in 
the  statute.     At  the  testator's  death,  A.  and  B.  had  no  children,  but  B. 
afterwards  had  children.     It  was  argued,  that  as  the  shares  vested  at 
twenty-one  or  marriage,  the  accumulation  of  each  child's  share  during 
the  minority  of  such  child  was  good,  it  being  within  the  exception  of 
the  act  which  allows  an  accumulation  "  during  the  minority  of  a  person 
who  would,  for  the  time  being,  if  of  full  age,  be  entitled  to  the  annual 
produce."     It  was  further  argued,  that  the  accumulation  of  each  child's 
share,  after  his  interest  vested,  was  good,  as  the  Thellusson  Act  had  no 
application  where  the  right  was  vested,  and  only  the  enjoyment  sus- 
pended ;  but  the  court  overruled  both  grounds,  and  held  all  accumula- 
tions after  twenty-one  years  from  the  ^testator's  death  to  be  void,  r*j;^Q-i 
and  to  pass  with  the  residue. (/)    It  will  be  observed  that  in  this  L        J 

(I)  Ellis  V.  Maxwell,  M.  S.,  and  3  Beav.  587. 

January,  1857. — 11 


158 


LEWIX  ON  THE  LAW  OF  TRTSTS,  ETC. 


instance  tlie  accumulation  was  not  expresdy  directed  but  %m:plied  in  the 
nature  of  the  bequest,  and  it  has  been  held  in  other  cases  that  the  sta- 
tute applies  to  such  a  gift.(m)  The  late  vice-chancellor  of  England, 
however  observed  that  the  statute  was  meant  only  to  put  an  end  to 
accumulations  expre^dy  directed ;(«)  and  in  a  subsequent  case  before 
him  decided  in  accordance  with  this  view.(o)  And  in  a  more  recent 
case,  where  a  sum  was  given  to  the  eldest  daughter  of  A.,  and  if  there 
should  be  none  such,  then  to  the  eldest  daughter  of  B.,  and  A.  had  no 
daughter,  and  twenty-one  years  from  the  testator's  death  elapsed  in  the 
lifetime  of  A.,  it  was  held  that  the  fund  must  go  on  accumulating  until 
a  recipient  of  the  legacy  could  be  ascertained,  and  that  the  case  was  not 
within  the  statute,  and  as  A.  died  afterwards  without  issue,  the  master 
of  the  rolls  held  that  the  eldest  daughter  of  B.  was  entitled  to  the  legacy 
and  the  accumulations. (^)  And  the  same  principle  was  again  applied 
by  the  master  of  the  rolls  in  the  case  of  Tench  v.  Cheese.(5)  The 
latter  case  was  reversed  on  appeal  by  the  lord  chancellor  and  lords  justices, 
but  upon  the  ground  that  as  the  will  was  worded,  an  accumulation  was 
expressly  directed. (/•)  The  lord  chancellor,  however,  took  occasion  to 
observe  that  the  distinction  taken  by  the  master  of  the  rolls  between 
an  accumulation  expressed  and  an  accumulation  impUed  was  unsound 
and  impossible  ;  and  he  justly  remarked  as  to  the  case  of  infancy,  that 
if  of  age,  the  infant,  instead  of  spending,  might  accumulate  the  rents, 
and  the  court  did  no  more  than  exercise  a  discretion  for  the  infant, 
which  was  a  very  different  thing  from  creating  a  suspense  fund  to  go  to 
somebody  who  had  no  title  during  the  accumulation. 

The  statute  proceeds  to  declare,  that  "  the  produce  of  the  property,  so 
long  as  the  same  shall  be  directed  to  be  accumulated  contrary  to  the 
r*i  1  -1  provisions  of  the  act,  shall  go  to  and  be  ^received  by  such  person 
L  -J  or  persons  as  would  have  been  entitled  thereto  if  such  accumula- 
tion had  not  been  directed." 

In  a  case  before  Lord  Eldon,  a  testatrix  had  directed  her  trustees  to 
pay  an  annuity  to  A.,  and  the  rest  of  the  interest  to  B.  and  C.  equally 
for  their  lives,  and  the  whole  to  the  survivor  for  her  life,  provided  that 
the  interest  due  to  B.  during  the  life  of  her  husband  should  not  be  paid 
to  her,  but  should,  during  his  life,  be  accumulated;  the  fund  on  his 
decease  to  be  paid  to  B.,  if  living,  or,  if  dead,  to  D.  The  accumulation 
was  established  for  twenty-one  years  from  the  testator's  death ;  but  in 
case  B.  and  her  husband  survived  that  period,  to  whom  was  the  excess 
during  the  residue  of  the  husband's  life  to  belong?  Was  the  gift  to  B. 
to  stand  alone,  and  the  subsequent  proviso  for  accumulation  to  be  struck 
out;  or  were  the  gift  and  the  accumulation  to  be  coupled  together,  and 
hoth  to  be  void,  so  that  the  excess  of  interest  should  result  ?  It  was  not 
necessary  to  decide  the  question,  and  Lord  Eldon  merely  observed,  "  it 
was  not  clear  upon  the  will  that  there  was  a  gift  in  prccsenti,  if  the 

(to)  M'Donald  v.  Bryce,  2  Keen,  27C  ;  Morgan  v.  Morgan,  4  Be  Gex.&  Sm.  170. 

(n)  Elborne  v.  Goode,  14  Sim.  165. 

(o)  Corporation  of  Bridgenorth  v.  Collins,  15  Sim.  538. 

(p)  Bryan  v.  Collins,  16  Beav.  14. 

iq)  Tench  v.  Cheese,  19  Beav.  3  ;  now  reported,  6  De  Gex,  M.  &  G.  453. 

(r)  1  Jur.  N.  S.  G89. 


OF  THE  OBJECT  PROPOSED  BY  THE  TRUST.    159 

declaration  for  accumulation  were  struck  out,  for  the  whole  must  be  taken 
together,  (s) 

In  a  subsequent  case,  where  a  fund  was  given  upon  trust  for  the 
testator's  daughter  for  life  with  remainders  over,  and  the  testator  directed 
that  if  the  income  exceeded  200?.  per  annum,  the  surplus  should  be 
accumulated,  but  the  period  of  accumulation  was  not  limited  to  twenty- 
one  years,  the  master  of  the  rolls  held  that  the  testator's  daughter  was 
entitled  to  the  excess  beyond  200?.  per  annum  from  the  expiration  of 
the  twenty-one  years,  but  in  what  character  the  daughter  was  so  entitled 
does  not  appear.  Probably  the  daughter  was  the  testator's  heiress-at-law, 
so  that  it  was  immaterial  to  consider  whether  the  heiress-at-law  or  the 
tenant-for-life  was  entitled. (^) 

In  another  case,(rt)  a  testator  directed  accumulations,  and  then  devised 
the  estates,  charged  and  chargeable  as  aforesaid,  to  Thomas,  the  eldest 
son  of  the  testator's  son,  James  Shaw,  in  tail,  with  remainder  over,  and 
it  appears  that  Thomas  took  the  ^benefit  of  the  void  accumula-  r^^lgT 
tions.  But  the  question,  who  was  entitled  to  the  accumulations,  L  J 
supposing  them  to  be  void,  was  not  argued  in  the  court  below,  and  only 
glanced  at  on  the  appeal. (t')  James  Shaw,  who  was  probably  the  tes- 
tator's heir,  had  died  before  the  institution  of  the  suit,  and  his  eldest 
son  Thomas  may  have  been  also  the  heir-at-law  of  the  testator. 

If  there  be  a  series  of  limitations,  and  one  of  them  be  upon  trust  to 
accumulate  the  rents  beyond  the  limits  allowed  by  the  act,  the  subse- 
quent limitations  are  not  accelerated,  but  the  interim  limitation,  which 
is  void  under  the  act,  will  result  for  the  benefit  of  the  heir-at-law, (?«) 
and  if  the  resulting  trust  be  a  chattel  interest,  it  will  devolve,  on  the 
death  of  the  heir,  on  his  personal  representative  ;(.:<;)  and  if  the  resulting 
interest  be  an  estate  pur  autre  vie,  it  is  the  better  opinion  that  it  also 
goes  to  the  heir's  personal  representative. (^)  If  the  heir  of  the  heir  be 
entitled  to  an  estate  -pur  autre  vie,  under  the  words  of  the  Thellusson 
Act,  why  not  also  to  a  chattel  interest?  But  under  the  late  "Wills  Act, 
1  V.  c.  26,  s.  25,  if  the  will  contains  a  residuary  devise,  and  there  be  no 
evidence  of  a  contrary  intention  on  the  face  of  the  will,  the  void  accu- 
mulations will  go  to  the  residuary  devisee.  In  personal  estate,  if  there 
be  a  residuary  legatee,  the  excess  beyond  the  allowed  period  of  accumu- 
lation will  fall  into  the  residue,(s)  and  where  the  residue  is  settled  on  A. 
for  life,  remainder  to  B.,  will  form  part  of  the  capital.(rt)     And  if  the 

(s)  Griffiths  v.  Vere,  9  Ves.  127,  see  135. 

(t)  Trickey  v.  Trickey,  3  M.  &  K.  560. 

(m)  Shaw  V.  Rhodes,  1  M.  &  Cr.  135;  S.  C.  by  the  name  of  Evans  v.  Hellier,  5 
Clarke  &  Fin.  114. 

(v)  See  5  CI.  &  Fin.  127. 

(w)  Eyre  v.  Marsden,  2  Keen,  564  ;  Nettleton  v.  Stephenson,  3  De  Gex  &  Sm. 
366;  Edwards  v.  Tuck,  3  De  Gex,  Mac.  &  Gord.  40;  Re  Drakeley's  Trust,  19 
Beav.  395. 

(x)  Sewell  V.  Denny,  10  Beav.  315. 

(y)  Barrett  v.  Buck,  12  Jur.  771  ;  see  Halford  v.  Stains,  16  Sim.  488,  contra. 
•    (2)  Haley  v.  Bannister,  4  Mad.  275  ;  O'Neill  v.  Lucas,  2  Keen,  313  ;  Webb  v. 
Webb,  2  Beav.  493  ;  Attorney-General  v.  Poulden,  3  Hare,  555  ;  Jones  v.  Maggs, 
9  Hare,  605  ;  Re  Drakeley's  Trust,  19  Beav.  395. 

(a)  Crawley  v.  Crawley,  7  Sim.  427. 


160       LEWIN  ON  THE  LAW  OF  TKUSTS,  ETC. 

subject  of  the  accumulation  be  tbe  income  of  the  residue  itself,  the  void 
accumulations  will,  according  to  the  nature  of  the  residue,  i.  e.  real  en- 
personal,  result  to  the  heir-at-law  or  to  the  next  of  kin. (6) 

*Lastlj,  the  statute  provides,  that  "nothing  in  the  act  con- 
[*119]  ^.^jjjgjj  gjjall  extend  to  any  provision  ior  jKiyment  of  cleUs{c)  of 
any  grantor,  settlor,  or  devisor,  or  other  person  or  persons,(cZ)  or  for 
raising  portions  for  any  child  of  the  settlor  or  devisor,  or  any  person 
taking  an  interest  under  the  settlement  or  devise,  or  to  any  direction 
touching  the  produce  of  timber  or  wood."  By  children  must,  of  course, 
be  exclusively  understood  legitimate  children  ;(e)  and  by  the  words 
taking  an  interest,  the  act  has  been  construed  to  mean  taking  a  suh- 
stantial  interest.  A  small  annuity,  for  instance,  to  the  parent,  would 
not  justify  an  accumulation  of  the  residue  of  the  rents  beyond  the  limits 
of  the  act  for  raising  portions  for  the  children. (/)  And  the  accumula- 
tion to  be  protected  by  the  clause  must  be  a  provision  for  raising  portions 
out  of  the  corpus,  not  an  accumulation  of  the  corpus  itself,  for  the  pur- 
pose of  making  a  gift  of  the  aggregate  fund, ((7)  and  must  be  a  provision 
for  children  certain,  and  not  a  chance  limitation  in  favour  of  any  child 
that  may  happen  to  survive  certain  persons  not  necessarily  standing  in 
the  relation  of  parent  and  child,  but  uncles  or  aunts,  &c.(/i)  And  by 
"  taking  an  interest  under  the  devise"  it  was  once  considered  that  not 
any  interests  in  a  large  sense  under  the  icill  were  meant,  but  under  the 
particular  gift,  devise,  or  bequest,  which  contains  the  provision  for  accu- 
mulation.(i)  But  this  view  has  been  since  overruled,  so  that  now,  if  the 
person  take  a  substantial  interest  in  any  property,  under  the  will,  it  is 
r*19m  sufficient.(A-)  *The  portions  intended  by  the  act  are  not  neces- 
L  "  J  sarily  portions  created  by  the  deed  or  will  directing  the  accumu- 
lation, but  may  be  portions  pre-existing.  (^) 

Scotland  is  expressly  excepted  from  the  act ;  and,  as  the  statute  was 
passed  a  short  time  before  the  union  with  Ireland,  it  is  presumed  that 
freeholds  in  that  country  are  also  unaffected  by  it. 

Another  modification  of  property,  unknown  to  the  common  law,  but 

(6)  M'Donald  v.  Brjce,  2  Keen,  276 ;  Eyre  v.  Marsden,  2  Keen,  564  ;  Pride  v. 
Fooks,  2  Beav.  430;  Elborne  v.  Goode,  14  Sim.  165  ;  Bourne  v.  Buckton,  2  Sim. 
N.  S.  91 ;  Edwards  v.  Tuck,  3  De  Gex,  Mac.  &  Gord.  40. 

[c)  Bateman  v.  Hotchkin,  10  Beav.  426. 

[d)  The  words  "  any  other  person  or  persons"  mean  the  debts  of  any  stranger 
whomsoever ;  see  Barrington  v.  Liddell,  2  De  Gex,  Mac.  &  Gord.  497 ;  10  Hare,  415. 

[e)  Shaw  v.  Rhodes,  1  M.  &  C.  135,  see  159. 

{/)  S.  C.  see  159  ;  and  see  Bourne  t.  Buckton,  2  Sim.  N.S.  91  ;  but  see  Evans 
V.  Hellier,  5  CI.  &  Fin.  127;  Barrington  v.  Liddell,  2  De  Gex,  Mac.  &  Gord.  500  ; 
Edwards  v.  Tuck,  3  De  Gex,  Mac.  &  Gord.  63. 

{(j)  Eyre  v.  Marsden,  2  Keen,  564;  Bourne  v.  Buckton,  2  Sim.  N.S.  91  ;  Tuck 
v.  Edwards,  3  De  Gex,  Mac.  &  Gord.  40 ;  Jones  r.  Maggs,  9  Hare,  605  ;  Wildes  v. 
Davies,  1  Sm.  &  Gif.  475  ;  and  see  Beech  v.  St.  Vincent,  3  De  Gex  &  Smale,  678. 
Li  Burt  V.  Sturt,  10  Hare,  427,  this  was  said  to  be  "a  shadowy  distinction.'' 
[h)  Burt  V.  Sturt,  10  Hare,  415. 

(i)  Bourne  v.  Buckton,  2  Sim.  N.S.  91,  see  101  ;  Mor^-an  v.  Morgan,  4  De  Gex 
&  Smale,  164. 

(k)  Barrington  v.  Liddell,  10  Hare,  415,  2  De  Gex,  Mac.  &  Gord.  500  ;  Edwards 
V.  Tuck,  3  De  Gex,  Mac.  &  Gord.  40  ;  Burt  v.  Sturt,  10  Hare.  415. 

{I)  Halford  v.  Stains,  16  Sim.  488  ;  Barrington  v.  Liddell,  2  De  Gex,  Mac.  & 
Gord.  498;  Middleton  v.  Losh.  1  Sm.  &  Gif.  61 ;  and  see  Burt  v.  Sturt,  10  Hare,  415. 


OF  THE  OBJECT  PROPOSED  BY  THE  TRUST.    161 

which  has  been  admitted  into  trusts,  is,  where  property,  real  or  personal, 
is  settled  to  the  separate  use  of  a /erne  covert,  so  as  to  exclude  the  control 
of  her  husband.  The  principle  at  common  law  is,  that,  as  the  husband 
undertakes  the  debts  and  liabilities  of  the  wife,  he  is  entitled,  absolutely 
or  partially,  according  to  the  circumstances  of  the  case,  to  the  enjoyment 
of  her  property;  but  in  equity  a /erne  is  allowed  to  contract  with  the 
husband  before  marriage,  for  the  exclusive  enjoyment  of  any  specific 
property  ;(m)  or  a  person  may  make  a  gift  to  the  wife  during  the  cover- 
ture, and  shut  out  the  husband's  interference  by  clearly  expressing  such 
an  intention.  Where  the  separate  estate  is  the  result  of  a  special  agree- 
ment between  the  parties,  the  policy  of  the  law  can  scarcely  be  said  to 
be  transgressed,  for  the  old  rule  was  established  for  the  benefit  and  pro- 
tection of  the  husband,  and  quisque  remmtiare potest  juri pro  se  instituto  ; 
but  that  equity  should  have  allowed  a  stranger  to  vest  property  in  the 
wife  independently  of  the  husband  during  the  coverture,  appears  a  more 
questionable  doctrine ;  though  it  may  be  said,  that  even  in  this  case, 
there  is  no  violation  of  the  marital  rights,  for  the  property  never  vested 
in  the  feme  herself,  and  the  donor  may  limit  any  estate  which  the  law 
does  not  refuse  to  recognize.  The  court  has  also  permitted  the  further 
anomaly  of  a  restriction  upon  the  feme's  anticipation  (where  such  an 
intention  has  been  expressed)  of  the  growing  proceeds  of  the  separate 
estate;  but  this  indulgence  appears  not  a  distinct  inroad  upon  the  com- 
mon law  incidents  of  property,  but  rather  an  *appendage  to  the  pi-^^-j 
separate  use  for  the  purpose  of  more  effectually  excluding  the  L  "J 
influence  of  the  husband.  If  the  wife  were  not  debarred  from  anticipat- 
ing the  proceeds,  she  might,  where  the  husband  was  not  actuated  by 
proper  motives,  be  induced  to  divest  herself  of  the  property,  and  place 
it  at  the  husband's  disposal.  Where  the  clause  against  anticipation  has 
once  attached,  even  a  court  of  equity  cannot  discharge  it,  though  it  were 
for  the /erne's  own  advantage. («) 

At  the  first  introduction  of  the  settlement  to  the  separate  use  it  was 
doubted,  whether,  to  accomplish  the  object,  the  interposition  of  an  express 
trustee  was  not  necessary  ;(o)  but  it  has  since  been  determined  that  this 
precaution  may  be  dispensed  with,  for,  rather  than  the  intention  shall  be 
disappointed,  the  husband  himself  shall  be  construed  a  trustee  for  the 
wife.(p)  But,  whether  a  trustee  be  expressly  appointed  or  not,  the  inten- 
tion of  excluding  the  husband  must  not  be  left  to  inference,  but  must  be 
clearly  and  unequivocally  declared  ;  for,  as  the  husband  is  bound  to  main- 
tain the  wife,  and  bears  the  burden  of  her  incumbrances,  he  has  j^rim  a 
facie  a  right  to  her  property  ;((^)  but,  provided  the  meaning  be  certain, 

(m)  See  Parkes  v.  White,  11  Ves.  228. 

(n)  Robinson  v.  Wheelwright,  21  Beav.  214. 

(o)  Harvey  v.  Harvey,  1  P.  W.  125  ;  Burton  v.  Pierpoint,  2  P.  W.  78. 

(p)  Bennet  v.  Davis,  2  P.  W.  316;  Parker  v.  Brooke,  9  Ves.  583  ;  Rollfe  v. 
Budder,  Biinb.  187  ;  Prichard  v.  Ames,  1  Turn.  &  Russ.  222 ;  Newlands  v.  Paynter, 
10  Sim.  377  ;  4  M.  &  Or.  408  ;  Turnley  v.  Kelly,  Wallis's  Rep.  by  Lyne,  311  : 
Archer  v.  Rooke,  7  Ir.  Eq.  Rep.  478. 

(q)  Ex  parte  Ray,  1  Mad.  207,  per  Sir  T.  Plumer ;  Wills  v.  Sayers,  4  Mad.  409, 
per  eundem;  Massey  v.  Parker,  2  M.  &  K.  181,  per  Sir  C.  Pepys  ;  Kensington  v. 
Dollond,  2  M.  &  K.  188,  per  Sir  J.  Leach. 


IQ2  LEWIN    OX    THE    LAW    OF    TRUSTS,    ETC. 

the  court  will  execute  the  intention,  though  the  settlor  may  not  have 
expressed  himself  in  technical  language,  (r) 

The  marital  claims  will  be  defeated  if  the  gift  be  to  the  wife  for  her 
"  sole  and  separate  use/'(s)  or  "  her  sole  use/'(^)  (which  *is  con- 
L^-""}  strued  as  separate  use,)  or  "  solely  for  her  own  use,"  (u)  or  for 
"her  livehhood,"(i;)  or  "  that  she  may  receive  and  enjoy  the  profits,"  (?() 
or  "  to  be  at  her  disposal,"  (a:)  or  "  to  be  by  her  laid  out  in  what  she  shall 
think  fit,"M  or  "  for  her  own  use,  independent  of  her  husband,"(^)  or 
"  not  subject  to  his  control,"(a)  or  "for  her  own  use  and  benefit,  inde- 
pendent of  any  other  person  ;"(b)  for  such 'expressions  as  these  are  clearly 
inconsistent  with  the  notion  of  any  interference  on  the  part  of  the  hus- 
band. So,  if  the  gift  be  accompanied  with  such  expressions  as  "  her 
receipt  to  be  a  sufficient  discharge," (c)  or  "  to  be  delivered  to  her  on 
demand  ;"(d)  for  in  these  cases  the  check  put  upon  the  husband's  legal 
right  to  receive  could  only  have  been  with  the  intention  of  giving  the 
wife  a  particular  benefit. 

But  if  the  trust  be  merely  "  to  pay  to  her,"  or  "  to  her  and  her 
assigns,"(e)  or  the  gift  be  <<  to  her  use," (/)  or  "  her  own  use," (g-)  or 
"  her^  own  absolute  use,"(/t)  or  "  to  pay  into  her  own  proper  hands  for 
her  own  use,"(i)  or  "to  pay  to  her  to  be  applied  for  the  maintenance  of 
r*1 9m  lierself  and  such  child  or  *children  as  the  testator  might  happen 
L  ""  J  to  leave  at  his  death," (7i-)  there  is  no  such  unequivocal  evidence 
of  an  intention  to  exclude  the  husband. 

Where  property  was  vested  in  the  husband  jointly  with  another,  as 

(r)  Darley  v.  Darley.  3  Atk.  399,  per  Lord  Hardwicke ;  Stanton  v.  Hall,  2  R.  & 
M.  180,  per  Lord  Brougham. 

(s)  Parker  v.  Brooke,  9  Ves.  583  ;  Archer  v.  Rooke,  7  Ir.  Eq.  Rep.  4'78. 

{t)  Adamson  v.  Armitage,  19  Ves.  416;  S.  C.  Coop.  283  ;  Ex  parte  Ray,  1  Mad. 
199  ;  Ex  parte  Killick,  3  Mont.  D.  &  D.  480  ;  Davis  v.  Proud,  7  Bear.  288  ;  Arthur 
V.  Arthur,  11  Ir.  Eq.  Rep.  511  ;  Lindsell  v.  Thacker,  12  Sim.  178,  (the  marginal 
note  in  the  last  case  is  altogether  erroneous)  ;  and  see  Massey  v.  Parker,  2  M.  & 
K.  181 ;  V.  Lyne,  Younge,  562  ;  but  the  latter  seems  not  to  have  been  cor- 
rectly reported.  The  facts  are  stated  from  the  registrar's  book  in  Tullett  v.  Arm- 
strong, 4  M.  &  Cr.  403. 

(m)  Inglefield  v.  Coghlan,  2  Coll.  247. 

{v)  Darley  v.  Darley,  3  Atk.  399 ;  and  see  Cape  v.  Cape,  2  Y.  &  C.  543  ;  Ex 
parte  Ray,  1  Mad.  208  ;  but  see  Lee  v.  Prieaux,  3  B.  C.  C.  383 :  Wardle  t.  Clax- 
ton,  9  Sim.  524. 

(ic)  Tyrrell  v.  Hope,  2  Atk.  558. 

(x)  Prichard  v.  Ames,  1  Turn.  &  Russ.  222  ;  Kirk  v.  Paulin,  7  Yin.  96. 

(y)  Atcherley  v.  Yernon,  10  Mod.  531.  (2)  Wagstaff  v.  Smith,  9  Ves.  520. 

(a)  Bain  v.  Lescher,  11  Sim.  397.  (6)  Margetts  v.  Barringer,  7  Sim.  482. 

(c)  Lee  v.  Prieaux,  3  B.  C.  C.  381 ;  "Woodman  v.  Horslev,  cited  lb.  383  ;  and 
see  Stanton  v.  Hall,  2  R.  &  M.  180. 

{d)  Dixon  v.  Olmius,  2  Cox,  414. 

(e)  Dakins  v.  Berisford,  1  Ch.  Ca.  194;  Lumb  v.  Milnes,  5  Ves.  517. 

(/)  Jacobs  V.  Amyatt,  1  Mad.  376,  n  ;  Wills  v.  Sayers,  4  Mad.  411,  per  Sir  T. 
Plumer;  Anon,  case,  cited  7  Yin.  96. 

{9)  Johnes  v.  Lockhart,  in  note  to  Lee  v.  Prieaux;  3  B.  C.  C.  383,  ed.  by  Belt, 
(this  case  is  erroneously  cited  as  an  authority  to  the  contrary  in  Lumb  v.  Milnes, 
a  V  es.  520,  and  Ex  parte  Ray,  1  Mad.  207) ;  Wills  v.  Sayers,  4  Mad.  409  ;  Roberts 
V.  bpicer,  5  Mad.  491  ;  Beales  v.  Spencer,  2  Y.  &  C.  Ch.  Ca  651 

(h)  Rycroft  v.  Christy,  3  Beav.  238. 
1^1'^  '^f^^  ^'  ^^^^'  ^  ^-  ^  *^-  ^^^i  Kensington  v.  Dollond,  2  M.  &  K.  184  ;  Black- 

Ti.T'4''^','  ^  "^''''  '^^ ;  ^'^t  S^^tley  V.  Hurle,  5  Yes.  545.  contra. 

{*)  Wardle  v.  Claxton,  9  Sim.  524. 


OF  THE  OBJECT  PROPOSED  BY  THE  TRUST.    163 

general  trustees  of  the  will,  upon  trust  (inter  alia,)  for  the  wife,  it  was 
held  not  to  be  a  gift  to  her  separate  use.(?)  Had  the  husband  alone  been 
appointed  a  trustee  for  the  wife,  the  decision  might  have  been  different.(/n) 
The  clause  against  the /erne's  anticipation  is  of  comparatively  modern 
growth.  In  Hulme  v.  Tenant(w)  it  was  held  that  a  limitation  to  the 
separate  use  simply  did  not  prevent  the  feme  from  aliening.  In  Pybus 
V.  Smith(o)  great  pains  had  been  taken  in  framing  the  separate  use,  and 
the  income  was  made  payable  as  the  feme  should  by  writing  under  her 
proper  hand  from  time  to  time  appoint,  but  it  was  again  decided  that 
the  feme  could  even  then  dispose  of  her  interest.  After  this.  Lord  Thur- 
low  happened  to  be  nominated  a  trustee  of  Miss  Watson's  settlement,  and 
he  directed  the  insertion  of  the  words  "  and  not  hy  anticipation  " [p) 
from  which  time  this  has  been  the  usual  formulary,  and  the  eifect  of  it 
for  the  purpose  of  excluding  the  power  of  disposition  has  never  been 
questioned. 

But  although  these  words  are  now  almost  universally  employed  they 
are  not  absolutely  indispensable,  for  if  the  intention  to  restrain  anticipa- 
tion can  be  clearly  collected  from  the  whole  instrument  it  is  sufficient,(5) 
as  if  there  be  a  direction  to  pay  the  income  to  such  persons  as  the  feme 
shall  after  it  is  become  due  app)oint,{r)  but,  as  we  have  seen,  if  the  limi- 
tation be  merely  to  the  sole  and  separate  use,  or  to  pay  from  to  time 
upon  her  receipt  under  her  own  proper  hand,(s]  or  if  the  trust  be  to  pay 
to  her  upon  her  personal  *appearance,(«)  the  feme  is  left  at  liberty  r*-|  9^ -i 
to  part  with  her  interest,  for  such  expressions  are,  as  Lord  Eldon  L  "  1 
observed,  "  only  an  unfolding  of  all  that  is  implied  in  a  gift  to  the  sepa- 
rate use."(M) 

Of  late  years  the  doctrine  of  the  separate  use  has  given  rise  to  the  fol- 
lowing questions  : — first.  Whether  a  fund  given  in  trust  for  the  separate 
use  of  a /erne  sole  without  power  of  anticipation  may  be  disposed  of  by 
her  at  any  time  previously  to  marriage  ?  secondly.  Whether  a  fund  given 
merely  for  her  separate  use,  without  words  in  restraint  of  anticipation, 
will,  in  default  of  any  previous  disposition  by  her,  vest  by  the  marriage 
in  the  husband,  or  the  trust  for  the  separate  use  of  the  wife  will  be  sup- 
ported against  his  legal  rights  ?  and,  thirdly,  Where  words  in  restraint 
of  anticipation  are  added,  whether,  supposing  the  separate  use  to  be 
good  in  the  event  of  marriage,  the  clause  against  anticipation  will  also 
operate  ? 

1.  With  reference  to  the  first  of  these  questions,  it  is  now  clearly  esta- 
blished, that  a /erne  sole  may,  before  marriage,  dispose  absolutely  of  a  gift 

{I)  Ex  parte  Beilby,  1  Glyn  &  J.  16T  ;  and  see  Kensington  v.  DoUond,  2  M.  & 
K.  184. 

(m)  Ex  parte  Beilby,  ubi  supra ;  and  see  Darley  v.  Darley,  3  Atk.  399. 

(n)   1  B.  C.  0.  16.  (0)  3  B.  C.  0.  340. 

\p)  See  Jackson  v.  Hobhouse,  2  Mer.  487  ;  Parkes  v.  White,  11  Ves.  221. 

\q)  See  Re  Ross's  Trust,  1  Sim.  N.S.  per  V.  C.  Kindersley,  p.  199. 

(r)  Field  v.  Evans,  15  Sim.  3'75  ;  Baker  v.  Bradley,  2  Jur.  N.S.  98. 

(s)  Ellis  V.  Atkinson,  3  B.  0.  C.  565  ;  Clarke  v.  Pistor,  cited  lb.  568  ;  Brown  v. 
Like,  14  Ves.  302  ;  Acton  v.  White,  1  S.  &  S.  429;  Witts  v.  Dawkins,  12  Ves.  501 ; 
Wagstaff  V.  Smith,  9  Ves.  520;  Sturgis  v.  Corp,  13  Ves.  190;  and  see  Scott  v. 
Davis.  4  M.  &  Cr.  87,  Quaere ;  Hovey  v.  Blakeman,  cited  9  Ves.  524. 

{t)  Re  Ross's  Trust,  1  Sim.  N.  S.  19G.  {u)  Parkes  v.  White,  11  Ves.  222. 


104 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


to  her  separate  use,  though  coupled  with  words  restrictive  of  anticipa- 
tion  ;(v)  and  the  principle  is  briefly  this— that  loherever  a  person  possess- 
ing an  interest,  however  remote  apossihility,  is  sui  juris,  that  person  can- 
not he  prevented  hy  any  intention  of  the  donor  from  exercising  the  ordi- 
nary rights  of  proprietorship.  The  fund  may  be  limited  "  in  trust  for 
the  separate  use  of  the /erne/'  or  "in  trust  for  her,  and,  in  the  event  of 
her  marriage  to  her  separate  use,"  or  "  in  trust  for  her  separate  use  in  the 
event  of  her  marriage,"  without  the  gift  of  any  estate  independently  of 
that  contingency ;  but  in  all  these  cases  the  interest,  whether  vested  or 
contingent,  is  in  favour  of  one  who  is  now  sid  juris,  and  who  therefore 
cannot  be  restrained  from  disposing  of  property  to  which  she  either  now 
is,  or  may  eventually  become,  entitled. 

2.  Upon  the  subject  of  the  second  question,  there  are  *difficulties 
t  J  upon  principle  in  the  way  of  holding  the  trust  for  the  separate 
use  to  arise  upon  the  marriage.  Thus,  it  cannot  be  said  there  is  any 
necessity  for  such  a  doctrine  with  the  view  of  protecting  the  feme  in  the 
due  enjoyment  of  her  property;  for,  having  an  absolute  power  of  dispo- 
sition over  the  interest  before  her  marriage,  she  may  settle  it  in  whatever 
manner  she  pleases  by  express  contract ;  and,  if  she  marry  without  such 
special  agreement,  the  legal  presumption  ought  to  be,  that  she  intended 
the  marriage  itself  to  operate  as  a  gift  of  it  to  the  husband.  It  may  be 
thought  hard  perhaps  that  a  father  should  not  be  allowed  to  tie  up  the 
property  of  his  daughter  against  the  effects  of  a  future  coverture  ■,{iv)  but 
is  it  not  eciually  hard  that  he  should  not  be  allowed  to  fetter  the  owner- 
ship of  a  weak  and  extravagant  son  ?  In  fact,  the  law  must  proceed 
upon  general  principles  ;  and  the  rule  is,  that  every  person,  whether  male 
or  female,  who  is  sui  juris,  has  a  legal  capacity,  and  therefore  cannot  be 
restrained  in  the  exercise  of  the  rights  of  property,  even  at  the  will  of  a 
parent.  Besides,  if  the  father  were  allowed  to  tie  up  the  property  of  his 
daughter,  his  will  should  be  imperative  ;  whereas  it  is  now  on  all  hands 
agreed,  that  the  feme,  while  sole,  may  dispose  of  the  property  at  plea- 
sure by  an  express  assignment,  whether  in  favour  of  her  intended  hus- 
band or  any  other  person.  But  the  principal  objection  is,  that  the  exclu- 
sion of  the  marital  rights  would  be  a  repugnancy  to  the  estate  itself;  for 
when  ih.e  feme  is  so  absolutely  the  owner  of  the  fund  that  it  maybe  paid 
into  her  own  hands  by  the  trustees,  or  may  be  assigned  by  her  to  a  mere 
volunteer,  or  may  become  vested  by  bankruptcy  or  insolvency  in  her 
assignees,  it  is  surely  inconsistent  to  say  that  the  marriage  shall  not  be  a 
transfer  of  it  to  the  husband,  a  purchaser  for  valuable  consideration. 
P^,£^^-,  However,  Lord  Cottenham,  in  the  cases  of  TuUett  v.  Arm- 
L    "^  -1  strong,  and  Scarborough  v.  Borman,(a;)  anxious  to  prevent  *the 

(v)  Jones  V.  Salter,  2  R.  &  M.  208  ;  Woodmeston  v.  Walker,  2  R.  &  M.  197  ; 
Brown  v.  Pocock,  lb.  210  ;  S.  C.  2  M.  &  K.  189 :  and  see  Massey  v.  Parker,  2  M. 
&  K.  \U. 

(w)  See  Benson  v.  Benson,  6  Sim.  130. 

(z)  4  M.  &  C.  377  ;  and  see  Newlands  v.  Paynter,  lb.  408  ;  Russell  v.  Dickson, 
2  Drur.  &  War.  138  ;  Archer  v.  Rooke,  7  Ir."Eq.  Rep.  478,  where  a  bequest  of 
chattels  real  was  to  the  testator's  daughter,  who  was  then  sole  and  without  the 
intervention  of  any  trustee,  and  on  her  marriage  the  husband  was  deemed  a 
trustee  for  her. 


OF  THE  OBJECT  PROPOSED  BY  THE  TRUST.    105 

consequences  that  would  have  flowed  from  a  diff"erent  decision,  and  not 
finding  any  other  safe  ground  upon  which  to  base  his  judgment,  asserted 
an  inherent  power  in  the  court  of  chancery  to  modify  estates  of  its  own 
creation,  and  in  virtue  of  that  jurisdiction  established  the  validity  of  the 
separate  use  to  its  fullest  extent.  "  It  is  said,"  he  observed,  « to  have 
been  very  generally  understood  in  the  profession,  that  the  separate  estate 
would  continue  to  operate  during  a  subsequent  coverture,  and  that  con- 
veyancers have  acted  so  extensively  upon  that  supposition,  that  very  many 
families  are  interested  in  the  decision  of  this  question.  That  circum- 
stance ought  to  have  great  attention  paid  to  it.  For  the  future  it  would 
not  probably  be  found  difficult  to  obtain  the  desired  security  for  the  future 
wife  by  other  means  consistent  with  the  well-established  rules  of  property, 
but  the  existing  arrangements  must  depend  upon  the  decision  of  this 
case.  I  have  over  and  over  again  considered  this  subject  with  a  great 
anxiety  to  find  some  principle  of  property  consistent  with  the  existing 
decisions  upon  which  the  preservation  of  the  separate  estate  during  a 
subsequent  coverture  could  be  supported.  I  have  been  anxious  to  find 
means  of  preserving  it,  not  only  to  maintain  those  existing  arrangements 
which  have  proceeded  on  the  ground  of  its  validity,  but  because  I  think 
it  desirable  that  the  rule  should,  if  possible^  be  established  for  the  future, 
believing,  as  I  do,  that  when  a  marriage  takes  place,  the  wife  having 
property  settled  to  her  separate  use,  all  the  parties  in  general  suppose 
that  it  will  so  continue  during  the  coverture.  To  permit  the  husband 
therefore  to  break  through  such  a  settlement,  and  himself  to  receive  the 
fund,  would,  in  general,  be  contrary  to  the  intention  of  the  parties,  and 
unjust  towards  the  wife.  This  view  of  the  case  has  led  to  a  suggestion 
which  has  often  been  made  in  argument,  by  which  the  object  might  be 
attained  without  violating  any  rule  of  property,  viz.  by  supposing  the 
husband  marrying  a  woman  with  a  property  so  settled,  tacitly  to  assent 
to  such  settlement,  or,  at  least,  to  be  bound  by  an  equity  not  to  dispute 
it.  I  was  for  some  time  much  disposed  to  adopt  this  view  of  the  subject, 
and  in  all  cases  in  which  the  husband  was  cognizant  of  the  fact,  there 
would  be  much  of  equitable  principle  to  support  the  gift  or  *set-  r*]^271 
tlement  against  him  ;  but  putting  the  title  of  the  wife  upon  such  L  "^  -I 
assent  of  the  husband,  assumes  that  but  for  such  assent  it  would  not 
exist.  It  abandons  the  idea  of  the  old  separate  estate  continuing  through 
the  subsequent  coverture,  and  supposes  a  new  separate  estate  to  arise 
from  the  act  of  the  husband.  If  the  title  of  the  wife  were  to  rest  upon 
that  supposition,  I  fear  that  the  remedy  would  be  very  inadequate,  and  that 
questions  would  constantly  arise  as  to  how  far  the  circumstances  of  each 
case  would  afi"ord  evidence  of  assent,  or  raise  this  equity  against  the 
husband.  After  the  most  anxious  consideration,  I  have  come  to  the 
conclusion  that  the  jurisdiction  which  this  court  has  assumed  in  similar  cases 
justifies  it  in  extending  it  to  the  protection  of  the  separate  estate,  with 
its  qualification  and  restrictions  attached  to  it,  throughout  a  subsequent 
coverture,  and  that  resting  it  upon  such  jurisdiction  is  the  broadest  foun- 
dation, and  that  the  interests  of  society  require  that  this  should  be  done.(l) 

(1)  Yet  the  lord  chancellor,  in  a  subsequent  case,  is  made  to  saj,  <•  The  prin- 
ciple of  my  decision  was,  that  a  person  marrying  a  woman  with  property  so  cir- 


1(56  LEW  IN    ON    THE    LAW    OF    TRUSTS,    ETC. 

When  this  court  first  establislied  the  separate  estate,  it  violated  the  laws 
of  property  as  between  husband  and  wife,  but  it  was  thought  beneficial, 
and  it  prevailed.  It  being  once  settled  that  a  wife  might  enjoy  separate 
estate  as  a  feme  sole,  the  laws  of  property  attached  to  this  new  estate, 
and  it  was  found  as  part  of  such  law,  that  the  power  of  alienation  belonged 
to  the  wife,  and  was  destructive  of  the  security  intended  for  it.  Equity 
aeain  interfered,  and  by  another  violation  of  the  laws  of  property,  sup- 
ported the  validity  of  the  prohibition  against  alienation.  In  the  case  now 
under  consideration,  if  the  after-taken  husband  be  permitted  to  interfere 
with  the  property  given  or  settled  before  the  marriage  to  the  separate 
use  of  the  wife,  much  of  the  benefit  and  security  of  the  rules  which  have 
been  *so  established  will  be  lost.  Why  then  should  not  equity 
L  "^  -I  in  this  case  also  interfere,  and  if  it  cannot  protect  the  wife  con- 
sistently with  the  ordinary  rules  of  property,  extend  its  own  rules  with 
respect  to  the  separate  estate,  so  as  to  secure  to  her  the  enjoyment  of  that 
estate  which  has  been  so  invented  for  her  benefit  ?  It  is,  no  doubt, 
doing  violence  to  the  rules  of  property  to  say,  that  property,  which  being 
given  with  qualifications  and  restrictions  which  are  held  to  he  void,  be- 
longed absolutely  to  the  woman  up  to  the  moment  of  her  marriage,  shall 
not  be  subject  to  the  ordinary  rules  of  law  as  to  the  interest  which  the 
husband  is  to  take  in  it ;  but  it  is  not  a  stronger  act  to  prevent  the  hus- 
band from  interfering  with  such  property,  than  it  was  originally  to  esta- 
blish the  separate  estate,  or  to  maintain  the  prohibition  against  aliena- 
tion." 

8.  With  reference  to  the  third  question,  viz.,  whether  not  only  the 
separate  use,  but  also  the  clause  against  anticipation,  shall  operate  upon 
the  marriage,  it  was  formerly  held  by  Sir  L.  Shadwell,  V.  C.  E.,  that 
while  the  sej^arate  use  was  good,(?/)  the  clause  against  anticipation  was 
nugatory.  (;3)  Lord  Langdale,  M.  R.,  with  more  consistency,  supported 
both  the  separate  use  and  also  the  clause  against  anticipation.{ci)  The 
case  of  Tullett  v.  Armstrong(6)  has  now  decided  the  validity  of  the 
clause  against  anticipation  as  well  as  of  the  separate  use.  "If,"  said  the 
court,  "  the  case  be  of  a  separate  estate,  without  power  of  anticipation,  it 
must  exist  with  that  qualification  or  fetter,  if  it  exist  at  all,  and  there  is 
no  principle  upon  which  it  can  be  held  that  the  separate  estate  operates 
during  a  coverture  subsequent  to  the  gift,  but  that  the  provisions  against 
anticipation  with  which  the  gift  was  qualified  does  not.  It  is  obvious 
that  such  a  rule  would  in  practice  defeat  the  intention  of  the  donor,  and, 
in  many  cases,  render  the  provision  which  he  had  made  for  the  protec- 
tion of  the  object  of  his  bounty  the  means  and  instrument  of  depriving 

{y)  Davis  v.  Thornycroft,  6  Sim.  420. 

(2)  Brown  v.  Pocock,  5  Sim.  663  ;  Johnson  v.  Freeth,  6  Sim.  423. 

(a)  Tullett  V.  Armstrong,  1  Beav.  1.  (Jj  4  M.  &  C.  390. 

cumstanced  is  considered  as  adopting  the  property  in  the  state  in  which  he  finds 
It,  and  bound  by  equity  not  to  disturb  it.  That  is  the  only  principle  which  I  could 
mm  upon  which  to  support  limitations  to  the  separate  use  under  such  circum- 
stances. Newlands  t.  Paynter,  4  M.  &  Cr.  417.  There  appears  evidently  to  have 
Deen  a  struggle  m  the  mind  of  the  court,  between  the  wish  to  support  the  sepa- 
rate use  (trom  a  fear  of  the  consequences  in  a  different  decision),  and  the  diffi- 
culty ot  findmg  a  principle  upon  which  to  maintain  it. 


OF  THE  OBJECT  PROPOSED  BY  THE  TRUST.    167 

her  of  it.  When  once  it  was  established  that  the  separate  estate  of  a 
married  woman  was  to  be  so  far  enjoyed  by  her  as  a /erne  sole,  as  to  bring 
with  it  all  *the  incidents  of  property,  and  that  she  might  there-  r*-^29"] 
fore  dispose  of  it  as  a  feme  sole  might  do,  it  was  found  that  to  L  "'  J 
secure  to  her  the  desired  protection  against  the  marital  rights,  it  was 
necessary  to  qualify  and  fetter  the  gift  of  the  separate  estate  by  prohi- 
biting anticipation.  The  power  to  do  this  was  established  by  authority 
not  BOW  to  be  questioned,  but  which  could  only  have  been  founded  upon 
the  power  of  this  court  to  model  and  qualify  an  interest  in  property, 
which  it  had  itself  created,  without  regard  to  those  rules  which  the  law 
has  established  for  regulating  the  enjoyment  of  property  in  other  cases. 
If  any  rule,  therefore,  were  now  to  be  adopted  by  which  the  separate 
estate  should,  in  any  case,  be  divested  of  the  protection  of  the  clause 
against  anticipation,  it  would  in  such  cases,  defeat  the  object  of  the  power 
so  assumed.  A  feme  covert  with  separate  estate  not  protected  by  a  clause 
against  anticipation,  is,  in  most  cases,  in  a  less  secure  situation  than  if 
the  property  had  been  held  for  her  simply  upon  trust.  In  the  latter  case 
this  court,  with  the  assistance  of  her  trustees,  can  eflfectually  protect  her ; 
in  the  other,  her  sole  dependence  must  be  upon  her  husband  not  oxer- 
cising  that  influence  or  control,  which,  if  exercised,  would,  in  all  proba- 
bility, procure  the  destruction  of  her  separate  estate.  In  the  case  of  a 
gift  of  separate  estate,  with  a  clause  against  anticipation,  the  author  of 
the  gift  supposes  that  he  has  efi'ectually  protected  the  wife  against  such 
influence  or  control.  Upon  what  principle  can  it  be  that  this  court 
should  subject  her  to  it,  and  by  so  doing  defeat  his  purpose,  and  com- 
pletely alter  the  character  and  security  of  his  gift  ?  The  separate  estate, 
and  the  prohibition  of  anticipation,  are  equally  creatures  of  equity,  and 
equally  inconsistent  with  the  ordinary  rules  of  property.  The  one  is 
only  a  restriction  and  qualification  of  the  other.  The  two  must  stand 
or  fall  together." 

It  was  held  in  a  case(c)  before  the  late  vice-chancellor  of  England, 
that  if  a  fund  be  vested  in  trustees  upon  trust  to  pay  the  proceeds  to 
such  persons  and  for  such  purposes  as  a  feme  covert  shall,  when  and 
as  they  become  due,  appoint,  but  so  as  not  to  charge  or  anticipate  the  same, 
and  in  default  of  *appointment  to  pay  the  same  into  the  hands  of  r^j^gQ-i 
the  feme  for  her  separate  use  (without  the  addition  of  any  words  L  -■ 
to  restrain  \iQr  power  of  anticipation,)  if  i\\Q  feme  covert  assign  the  life 
estate  limited  to  her  in  default  of  appointment,  it  destroys  the  power, 
and  the  restriction  upon  the  anticipation  annexed  to  it  is  nugatory. 
Such  a  doctrine  would  have  led  to  great  inconvenience,  as  the  precedents 
of  the  most  approved  conveyancers  were  known  to  have  been  frequently 
expressed  in  that  form,  and  the  decision  after  failing  to  secure  the  assent 
of  other  judges(fZ)  was  ultimately  reversed  on  appeal. (e)  The  substan- 
tial intention  was  taken  to  be,  that  ih.e,  payment  into  her  hands,  as  well 
as  the  poicer  to  appoint,  was  not  to  operate  until  the  annual  proceeds 
had  become  actually  due. 

(c)  Brown  v.  Bamford,  11  Sim.  127. 

[d)  Moore  v.  Moore,  1  Collyer,  54 ;  Harrop  v.  Howard,  3  Hare,  624 ;  Harnett  v. 
Macdougall,  8  Beav.  187.  (e)   1  Pbill.  G20. 


168  LEWIN    OX    THE    LAW    OF    TRUSTS,    ETC. 

In  another  case  the  trust  was  to  pay  to  such  person  or  persons  as  the 
feme  should  appoint,  and  in  default  into  her  own  proper  hands,  the 
receipts  of  the /erne  or  her  appointee  to  be  sufficient  discharges,  and 
that  the  trustees  should  be  at  liberty  to  require  from  the  feme  a  separate 
receipt  for  each  quarterly  payment,  "  it  being  the  testator's  intention 
that  the  annual  interest  and  proceeds  should  not  be  sold,  charged,  or 
otherwise  disposed  of;"  and  the  vice-chancellor  of  England  held  that 
the  testator  having  previously  given  a  general  power  of  disposition,  the 
concluding  words  were  inconsistent  with  such  a  gift,  and  therefore  nuga- 
tory. (/)  This,  however,  was  before  his  honor's  decision  in  Brown  v. 
Bamford  had  been  overruled  by  the  lord  chancellor,  and  the  decision  it 
is  conceived  could  not  be  supported. 

If  a  fund  be  settled  to  the  separate  use  of  a  feme,  which  is  meant  to 
be  confined  to  that  particular  marriage,  and  the  husband  afterwards 
die,  and  the  widow  marry  again,  the  second  husband  shall  not  be 
excluded  from  his  ordinary  marital  rights.  (^)  The  question  simply  is. 
What  was  the  intention  of  the  settlement  ?  for  Tullett  v.  Armstrong  has 
now  decided,  that  if  the  exclusion  of  any  future  husband  was  also  in 
r*mn  contemplation,  *it  shall  be  carried  into  eflFect,(/i)  and  if  the  sepa- 
L  J  rate  use  extend  to  any  marriage,  present  or  future,  even  the 
arrears  due  to  the  feme  at  the  time  of  the  subsequent  marriage  are  pro- 
tected from  the  after-taken  husband. (t) 

SECTION  II. 

OF  UNLAWFUL  TRUSTS. 

The  court  will  not  permit  the  system  of  trusts  to  be  directed  to  any 
object  that  contravenes  \ks.Q  policy  of  the  law.(y )  Thus,  if  the  trust  of  a 
rJiattel  be  limited  to  A.  and  his  heirs,  it  will  nevertheless  be  personal 
estate,  and  vest  in  the  executors,(7i;)  for  to  hold  the  contrary  would  shake 
the  first  principles  of  law  and  confound  the  great  landmarks  of  property. 
So  the  trust  of  a  chattel  cannot  be  entailed,  as  if  it  be  limited  to  A.  and 
the  heirs  of  his  body,  with  remainder  to  B.,  the  absolute  interest  vests 
in  A.,  and  the  remainder  to  B.  is  a  nullity.(A  But  trusts  of  terms 
attendant  upon  the  inheritance  were  always  excepted  from  the  rule;  for 
these,  partly  to  protect  the  estate  from  secret  incumbrances,  and  partly 
to  keep  the  property  in  the  right  channel,(?)i)  were  made  to  follow,  as 
shadows,  the  devolution  of  the  freehold. («) 

(/)  Medley  v.  Horton,  14  Sim.  222. 

{g)  Barton  v.  Briscoe,  Jac.  603 ;  Benson  v.  Benson,  6  Sim.  126  ;  Knight  v. 
Knight,  lb.  121  ;  Jones  v.  Salter,  2  R.  &  M.  208. 

{h)  Ashton  v.  M'Dougall,  5  Beav.  56;  Re  GafFee,  7  Hare,  101 ;  1  Mac.  &  Gord.  541. 

(i)  Ashton  v.  M'Dougall,  5  Beav.  56  ;  and  see  Newlands  v.  Paynter,  4  M.  &  Cr. 
418  ;  England  v.  Downs,  6  Beav.  269. 

{j)  See  Attorney-General  v.  Pearson,  3  Mer.  399  ;  Hamilton  v.  Mainwaring,  2 
Bligh,  209 ;  Earl  of  Kingston  v.  Ladv  Pierepoint,  1  Vern.  5. 

{k)  Duke  of  Norfolk's  case,  3  Ch.  Ca.  9,  11;  S.  C,  1  Vern.  164,  per  Lord  Guild- 
ford ;  Hunt  V.  Baker,  2  Freem.  62  ;  Attorney-General  v.  Sands,  Nels.  133. 

(0  Duke  of  Norfolk's  case,  3  Ch.  Ca.  9,  11 ;  Hunt  v.  Baker,  2  Freem.  62. 

(wi)  See  Willoughby  v.  Willoughby,  1  T.  R.  765. 

(«)  For  the  law  upon  this  subject,  see  Vend.  &  Purch.  Ch.  15. 


OF    THE    OBJECT    PROPOSED    BY    THE    TRUST.         1G9 

Again,  a  person  cannot  settle  property  upon  trust  for  illegitimate  chil- 
dren to  he  thereafter  horn,  but  tlie  declaration  of  trust  is  void,  and  the 
beneficial  interest  results  to  the  settlor. (o) 

So  a  trust  of  real  estate  cannot  be  declared  in  favour  of  a  corporation 
without  a  license  from  the  crown. (^:) ) 

*And  a  trust  of  real  estate  declared  in  favour  of  an  alien  will  r-^-.  09-1 
vest  in  the  crown  without  the  form  of  a  previous  inquisition. (g')  L       ~'J 

So,  neither  lands  nor  property  savouring  of  the  realty  can  be  conveyed 
upon  trust  for  a  charity,  unless  the  requirements  of  the  9  Gr.  2,  c.  36, 
as  respects  execution  and  enrolm.ent,(f)  and  absence  of  any  reservation 
for  the  benefit  of  the  grantor,(s)  be  complied  with.  And  where  lands 
were  conveyed  to  trustees  for  a  charity  by  a  deed  duly  enrolled,  and 
without  any  reservation  upon  the  face  of  it  to  the  grantor,  but  upon  a 
secret  trust  that  the  deed  should  not  operate  until  after  the  settlor's 
death,  the  deed  was,  upon  bill  filed,  declared  void,  and  decreed  to  be  set 
aside.  (?) 

A  perpetuity  will  no  more  be  tolerated  when  it  is  covered  with  a  trust, 
than  when  it  displays  itself  undisguised  in  a  settlement  of  the  legal 
estate.(«)  "  A  perpetuity,"  said  Lord  Guildford,  "  is  a  thing  odious  in 
law,  and  destructive  to  the  commonwealth.  It  would  put  a  stop  to  com- 
merce, and  prevent  the  circulation  of  the  riches  of  the  kingdom,  and 
therefore  is  not  to  be  countenanced  in  equity.  If  in  equity  you  could  come 
nearer  to  a  perpetuity,  than  the  rules  of  common  law  would  admit,  all  men, 
being  desirous  to  continue  their  estates  in  their  families,  would  settle 
their  estates  by  way  of  trust,  which  might  indeed  make  well  for  the 
jurisdiction  of  the  court,  but  would  be  destructive  to  the  common- 
wealth."(v) 

So  trusts  cannot  be  created  with  a  proviso,  that  the  interest  of  the 
cestui  que  trust  shall  not  be  aliened,(i«)  or  shall  not  be  made  subject  to 
the  claims  of  creditors. (a;)  If  it  can  only  be  ascertained  that  the  cestui 
que  trust  was  intended  to  take  a  vestest  interest,  the  mode  in  which,  or 
the  time  when,  the  cestxd  que  trust  was  to  reap  the  benefit,  is  perfectly 
immaterial — the  *entire  interest  may  either  be  disposed  of  by  rxs-ioo-i 
the  act  of  the  cestui  que  trtcsf,  or  may  become  vested  in  his  assig-  L  -' 
nees  by  operation  of  law  on  his  bankruptcy  or  insolvency.  Thus,  if 
the  trust  be  to  pay  the  interest  of  a  fund  to  a  person  for  life  "  at  such 
times  and  in  such  manner  as  the  trustees  shall  think  proper,"(y)  or 

(0)  Wilkinson  v.  Wilkinson,  1  Y.  &  C.  Ch.  Ca.  657  ;  Pratt  v.  Mathew,  22  Beav. 
339. 

(p)  See  Sheph.  Touch.  509 ;  Sand,  on  Uses,  339,  note  E.  15  Ric.  2,  c.  5. 

(q)  See  Dummoncel  v.  Dumoncel,  13  Ir.  Eq.  Rep.  92 ;  Yin.  Ab.  Alien,  A,  8  ; 
Godfrey  V.  Dixon,  Godb.  275;  Br.  Feff.  al.  Uses,  389;  King  v.  Holland,  Al.  16, 
Styl.  21;  Barney  v.  Macdonald,  15  Sim.  6. 

(r)  Doe  V.  Hawthorn,  2  B.  &  Aid.  96 ;  Doe  v.  Munro,  12  M.  &  W.  845, 

(s)  Limbrey  v.  Gurr,  6  Mad.;  Attorney-General  v.  Munby,  1  Mer.  327. 

(i)  Way  T.  East,  2  Drewry,  44. 

(2<)  See  Duke  of  Norfolk's  case,  3  Ch.  Ca.  20,  28,  35,  48. 

(I'j  S.  C.  1  Vern.  164. 

(w)  Snowdon  v.  Dales,  6  Sim.  524  ;  Green  v.  Spicer,  1  R.  &  M.  395  ;  Graves  v. 
Dolphin,  1  Sim.  66;  Brandon  v.  Robinson,  18  Yes.  429. 

(x)  Graves  v.  Dolphin,  Snowdon  v.  Dales,  Brandon  v.  Robinson,  ubi  supra  ;  Bird 
V.  Johnson,  18  Jur.  976.  (?/)  Green  v.  Spicer,  ubi  supra. 


170       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

from  time  to  time  as  and  when  it  shall  become  due  and  payable," (2)  or 
« in  such  smaller  or  larger  portions,  at  such  times  immediate  or  remote, 
and  in  such  way  and  manner  as  the  trustees  shall  think  best,"(a)  the 
discretion  of  the  trustees  is  determined  by  the  bankruptcy  or  insolvency 
of  the  cestui  que  trust,  and  the  entirety  of  the  life  estate  becomes  vested 
in  the  assignees.  Even  where  the  trustees  were  directed  to  pay  the 
interest  of  a  sum  "  to  A.  for  life  or  during  such  part  thereof  as  the  trus- 
tees should  think  proper,  and  at  their  will  and  pleasure,  but  not  otherwise, 
and  so  that  A.  should  not  have  any  right,  title,  claim,  or  demand  other 
than  the  trustees  should  think  proper ;"  and  after  A.'s  decease,  to  pay 
the  interest  to  his  widow  for  her  life,  and  after  her  decease  to  assign  the 
principal  and  "  all  savings  or  accumulations  of  interest,  if  any,"  to  the 
children,  the  court  thought,  that,  taking  the  whole  instrument  together, 
the  trustees,  had  no  power  to  withhold  and  accumulate  any  portion  of 
the  interest  during  the  life  of  A.,  and  therefore,  on  his  bankruptcy,  the 
assignees  became  absolutely  entitled. (i) 

However,  where  a  fund  was  given  to  trustees  ilpon  trust  to  apply  the 
whole  or  sucli  part  of  the  interest  as  they  should  think  fit  during  the 
life  of  A.,  for  his  support  and  maintenance,  and  for  no  other  purpose, 
it  was  held  by  the  vice-chancellor  of  England  that  nothing  passed  to 
the  assignees. (c)  And  where  a  residuary  estate  was  given  to  the  testa- 
tor's son  for  life,  but  if  he  did  any  act  whereby  the  interest  vested  in 
him  would  become  forfeited  to  others,  the  trustees  were  to  apply  the 
annual  produce  "  for  the  maintenance  and  support  of  the  son,  any  wife 
and  child  or  children  he  might  have,  as  the  trustees  should  in  their 
discretion  think  fit,"  and  the  son  became  bankrupt,  having  a  wife  and 
r*imn  children,  *the  vice-chancellor  of  England  said,  "It  did  not  fol- 
L  J  low  from  the  gift  that  anything  was  of  necessity  to  be  jj«<V7,  but 
the  property  was  to  be  applied  ;  and  there  might  be  a  maintenance  of 
the  son,  and  of  the  wife  and  children,  without  their  receiving  any  money 
at  all.  For  instance,  the  trustees  might  take  a  house  for  their  lodging,  and 
they  might  give  directions  to  tradesmen  to  supply  the  son  and  the  wife  and 
children  with  all  that  was  necessary  for  maintenance,  and  if  so  the  as- 
signees were  not  entitled  to  anything."(fA  But  where  property  was  vested 
in  trustees  upon  trust  for  A .  for  life,  until  his  bankruptcy,  &c.,  and  on  his 
bankruptcy,  &c.,  upon  trust  to  apply  the  proceeds  '<  in  such  manner  and  to 
such  persons  for  the  hoard,  lodging,  and  subsistence  of  himself  and  his 
family  as  the  trustees  should  think  proper,"  and  A.  became  bankrupt, 
having  lost  his  wife,  and  having  f/tree  children,  it  was  held  by  the  master 
of  the  rolls  that  the  assignees  were  entitled  to  one-fourth  part  for  the  life  of 
A.(e)  And  in  another  case,  where  real  and  personal  estate  was  vested  by  a 
marriage-settlement  in  trustees  upon  trust  to  apply  the  annual  produce 
thereof «' for  the  maintenance  and  support  of  A.  B.,  his  icifeand  chil- 

(2)  Graves  v.  Dolphin,  1  Sim.  66.  (a)  Piercy  v.  Roberts,  1  M.  &  K.  4. 

(6)  Snowdon  v.  Dales,  6  Sim.  524.  (c)  Twopeny  v.  Peyton,  10  Sim.  487. 

{d)  Godden  v.  Crowhurst,  10  Sim.  642.  If  this  case  can  be  supported  at  all,  it 
must  be  on  the  ground  that  the  trustees  were  not  obliged  to  apply  more  than  an 
illusory  part  for  the  benefit  of  the  husband.  Compare  Younghusband  v.  Gis- 
borne,  1  Collyer,  400. 

(e)  Rippon  v.  Norton,  2  Beav.  63. 


OF  THE  OBJECT  PROPOSED  BY  THE  TRUST.    I7I 

dren,  if  any,  or  otherwise,  if  they  thought  proper,  to  permit  the  same  to 
be  received  by  A.  B.,  for  his  life,"  and  A.  B.  became  bankrupt,  leaving 
a  wife  but  no  children,  the  master  of  the  rolls  said,  "  There  could  be 
no  doubt  of  the  intention  of  the  settlement,  that  the  wife  should  be 
supported  out  of  the  property,  and  he  was  of  opinion  that  so  long  as  the 
wife  and  children  were  maintained  by  A.  B.,  the  trustees  had  a  discre- 
tion to  give  him  the  whole  income,  but  that  it  was  their  duty  to  see 
that  the  wife  and  children  were  maintained ;  that  the  assignees  took 
everything,  subject  to  what  was  proper  to  be  allowed  for  the  maintenance 
of  the  wife  and  children,  and  that  it  must  be  referred  to  the  master  to 
settle  a  proper  allowance. "(/)  In  a  subsequent  case,  freehold  and 
leasehold  property  was  vested  in  trustees  upon  trust  for  A.  B.  for  life, 
but  if  *he  became  bankrupt  or  insolvent,  the  trustees  were,  during  ^^^  0^-1 
his  life,  to  apply  the  annual  produce  <'  in  and  towards  the  main-  L  J 
tenance,  clothing,  lodging,  and  support  of  A.  B.  and  his  then  present 
or  any  future  wife  and  his  children,  or  any  0/  them  as  the  trustees 
should  in  their  discretion  think  proper."  A.  B.  became  insolvent, 
having  a  wife  and  children,  and  it  was  argued  that  the  power  in  the 
trustees  was  destroyed  by  the  insolvency,  and  that  the  life  estate  vested 
in  the  assignee  ;  but  Vice-Chancellor  Knight  Bruce  held  that  the  trustees 
had  a  right  under  the  power  to  appoint  in  favour  of  the  insolvent,  his 
wife  and  children,  or  any  of  them  in  exclusion  of  any  other  of  them, 
but  that  any  benefit  which  the  insolvent  might  take  would  belong  to  the 
assignee. (^)  And  the  same  doctrine  has  been  held  in  the  more  recent 
case  of  Kearsley  v.  Woodcock. (/i)  The  question  to  be  asked  in  these 
cases  is,  on  the  decease  of  the  cestui  qtie  trust  would  his  executor  have  a 
right  to  call  upon  the  trutsees  retrospectively  to  account  for  the  arrears  ? 
If  he  would,  then  the  assignees  are  prospectively  entitled  to  the  pay- 
ments in  future. 

But  though  a  person  cannot  put  a  restraint  upon  alienation,  or  exclude 
the  rights  of  creditors,  he  may  settle  property  upon  A.  until  alienation, 
bankruptcy,  or  insolvency,  with  a  limitation  over  to  B.  on  the  happen- 
ing of  either  of  those  events ;  or  he  may  give  the  fund  to  A.  for  life,  or 
absolutely  in  the  first  instance,  with  a  proviso  that  on  alienation,  bank- 
ruptcy, or  insolvency,  the  estate  shall  shift  over  to  be  B.(t)  But  a 
clause  divesting  the  property  on  ''  alienation"  will  extend  only  to  a 
disposition  by  the  act  of  the  party,  and  not  to  a  transfer  by  ope-  p^,  ^n-, 
ration  of  law,  as  hankruptci/,(^k^  unless  it  can  be  collected  *from  L         -I 

(/)  Page  V.  Way,  3  Beav.  20. 

Iff)  Lord  V.  Bunn,  2  Y.  &  C.  Ch.  Ca.  98  ;  Holmes  v.  Penney,  3  K.  &  J.  90, 

(h)  3  Hare,  185. 

(t)  Shee  v.' Hale,  13  Ves.  404  ;  Cooper  v.  Wyatt,  5  Mad.  482  ;  Yarnold  v.  Moor- 
house,  1  R.  &  M.  364  ;  Lockyer  v.  Savage,  2  Stra.  947  ;  Stephens  v.  James,  4  Sim. 
499  ;  Ex  parte  Hinton,  14  Ves.  598  ;  Lewes  v.  Lewes,  6  Sim,  304 ;  Ex  parte  Oxley, 
1  B.  &  B.  257  ;  Stanton  v.  Hall,  2  R.  &  M.  175  ;  and  see  Rochford  v.  Hackman,  9 
Hare,  475  ;  Sharp  v.  Cossent,  20  Beav.  470. 

{k)  Lear  v.  Legget,  2  Sim.  479 ;  S.  C.  1  R.  &  M.  690 ;  Whitfield  v.  Prickett,  2 
Keen,  608 ;  Wilkinson  v.  Wilkinson,  Sir  Geo.  Coop.  R.  259 ;  and  see  S.  C.  3  Sw. 
528.  Where  the  clause  was  against  "  anticipating  or  otherwise  assigning  or  in- 
cumberiag"  the  annual  proceeds,  and  the  cestui  que  trust  assigned,  so  far  as  he 
lawfully  could  without  a  forfeiture,  the  arrears  already  accrued,  but  not  the  future 


172  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

the  context  that  the  term  was  intended  by  the  settlor  to  have  so  wide 
a  signification. (^)  Insolvency  is  not  a  process  in  mvitum,  but  the  act  of 
the  Insolvent  himself  (except  it  be  on  the  petition  of  a  creditor  under 
the  late  statute,)(«i)  and  therefore  comes  within  the  meaning  of  a  res- 
traint against  '' alienation."(?i)  However,  a  person  cannot  settle  his 
oivn  property  on  himself,  with  a  limitation  over  in  the  event  of  his  own 
alienation,(c»)  or  on  his  own  bankruptcy  or  insolvency. (?>)  But  if  on 
his  marriage  he  receive  a  portion  with  his  wife,  he  may  settle  a  fund  of 
his  own  to  the  extent  of  the  wife's  fortune,  for,  though  apparently  a 
settlement  by  the  husband,  it  is  in  fact  a  settlement  of  the  money  advan- 
ced by  the  wife.(5') 

It  is  not  unusual  to  find  a  clause  in  a  will  directory  to  trustees  to 
purchase  a  presentation  in  favour  of  some  particular  object;  but,  it  seems, 
if  the  purchase  be  made  with  the  intention  of  presenting  the  cestui  que 
trust,  though  the  patron  himself  was  ignorant  of  the  purpose  in  view,(r) 
it  falls  within  the  statutes  enacted  for  the  prevention  of  simony,  (s)  A 
patron  is  forbidden  to  present  for  money,  either  directly  or  indirectly  ; 
and,  the  object  being  determined  upon  at  the  time  of  the  purchase,  the 
construction  put  upon  the  transaction  by  the  court  is,  that  the  patron 
presents  indirectly  by  selling  to  a  person  who  purchases  with  the  sole 
intention  of  presenting. 

r*iq7T  It  has  been  ruled  that  the  statute  relating  to  insurances  on 
L  J  *lives  does  not  prohibit  an  insurance  on  the  life  of  A.  in  the  name 
of  B.,  ^ipon  trtistfor  A.,  when  both  names  appear  upon  the  policy. (<) 

Fictitious,  fraudulent,  or  collusive  conveyances,  for  the  purpose  of 
splitting  votes  for  members  of  parliament,  as  when  the  conveyances  are 
in  form  only,  and  there  is  a  private  arrangement  between  the  parties  that 
no  interest  shall  pass,  are  null  and  void;  but  if  A.  6o?m^fZe  and  without 
any  secret  understanding  in  derogation  of  the  deed,  though  for  the  pur- 
pose of  multiplying  votes,  convey  to  B.  in  trust  for  a  number  of  persons 
as  tenants  in  common,  that  they  may  thereby  acquire  a  qualification,  the 
deed  is  unimpeachable. (?A 

income,  it  was  held  the  assignment  being  confined  to  the  arrears  was  valid ;  Re 
Stulz's  Trusts,  4  De  Gex,  Mac.  &  Gord.  404. 

(/)  Dommett  v.  Bedford,  6  T.  R.  684  ;  Cooper  v.  Wyatt,  5  Mad.  482. 

(m)   1  &  2  Vict.  c.  110,  s.  36  ;  see  Pjm  v.  Lockyer,  12  Sim.  394. 

(n)  Shee  v.  Hale,  13  Ves.  404 ;  Brandon  v.  Aston,  2  Y.  &  G.  Ch.  Ca.  24  ;  Church- 
ill V.  Marks,  1  Colls.  441 ;  Martin  v.  Margham,  14  Sim.  230. 

(o)  Phipps  V.  Lord  Ennismore,  4  Russ.  131. 

(p)  Higginbotham  v.  Holme,  19  Ves.  88 ;  Ex  parte  Hill,  1  Cooke's  Bank.  Law, 
291  ;  Ex  parte  Bennet,  lb.  293  ;  In  re  Murphv,  1  Sch.  &  Lef.  44  ;  In  re  Meaghan, 
lb.  179 ;  Ex  parte  Hodgson,  19  Ves.  206  ;  Re  Casey's  Trust,  3  Ir.  Ch.  Rep.  419 :  4 
Ir.  Ch.  Rep.  247. 

^  (?)  Ex  parte  Cooke,  8  Ves.  353  ;  Higginson  v.  Kelly,  1  B.  &  B.  252  ;  Ex  parte 
Verner,  lb.  260  ;  In  re  Meaghan,  1  Sch.  &  Lef.  179;  Ex  parte  Hodgson,  19  Ves. 
206 ;  but  see  Ex  parte  Hill,  1  Cooke's  Bank.  Law,  291,  and  compare  Ex  parte 
Hodgson,  19  Ves.  208.  (^)  King  v.  Trussel,  1  Sid.  329. 

(«)  Kitchen  v.  Calvert,  Lane,  102,  per  Baron  Snig;  Whinchcombe  v.  Pulleston, 
^oy,  25  per  Lord  Hobart;  Godbolt,  390;  and  see  Fearne's  P.  W.  404  ;  but  see 
J^ox  V.  Bishop  of  Chester,  6  Bing.  1. 

(i)  CoUett  V.  Morrison,  9  Hare,  162. 

B  Re  ^'io™^^'^  ^*  ^'^^P^'''^'^'  ^  ^°'"-  ^-  ^^P-  ^^^  >  Alexander  v.  Newman,  2  Com. 


OF  THE  OBJECT  PROPOSED  EY  THE  TRUST.    173 

Where  a  trust  is  created  for  au  unlawful  aud  fraudulent  purpose  the 
court  will  neither  enforce  the  trust  in  favour  of  the  parties  intended  to 
be  benefited,  nor  will  assist  the  settlor  to  recover  the  estate. 

Thus  in  Cottington  v.  Fletcher,(i;)  before  Lord  Hardwicke,  a  papist 
had  assigned  an  advowson  to  A.  B.  for  a  term  of  ninety-nine  years,  for 
the  purpose  of  evading  the  statutes  which  vested  in  the  two  universities 
presentations  of  livings  in  the  gift  of  papists.  The  grantor  afterwards 
conformed  to  the  protestant  religion,  and  filed  a  bill  against  A.  B.,  pray- 
ing a  discovery  of  the  secret  trust.  The  defendant  pleaded  the  Statute 
of  Frauds,  by  which  all  declarations  of  trust  are  required  to  be  in  writ- 
ing, but  admitted  by  his  answer  for  what  purposes  the  assignment  had 
been  made.  Lord  Hardwicke  held,  that,  if  the  plea  had  stood  by 
itself,  it  might  have  been  good  enough,  but,  coupled  with  the  answer 
which  was  a  full  admission  of  the  facts,  it  ought  to  be  overruled ;  but 
his  lordship  added,  '<If  the  defendant  had  demurred  to  the  bill,  it  mio-ht 
have  been  of  a  difi"erent  consideration ;  for,  as  the  assignment  was  done 
in  fraud  of  the  law,  he  doubted  at  the  hearing,  whether  the  plaiutiflf 
could  be  relieved,  such  fraudulent  conveyances  being  made  absolute 
against  the  grantor."  The  opinions  of  Lord  Eldon  are  expressed  in 
the  following  remarks  upon  this  case: — *'<Lord  Hardwicke,"  p>j;-,qQn 
he  observed,  "is  made  to  say,  that,  upon  the  admission  of  the  L  "^^J 
trust  by  the  defendant,  he  would  act.  I  do  not  know  whether  he  did 
act  upon  it,  but  it  is  questionable  whether  he  shoidd,  for  there  is  a  great 
difi"erence  between  the  case  of  an  heir  coming  to  be  relieved  against  the 
act  of  his  ancestor  in  fraud  of  the  law,  and  of  a  man  coming  upon  his 
own  act  under  such  circumstances.  It  is  said  it  might  be  difi"ereut,  if 
it  had  come  on  upon  demurrer.  Lord  Hardwicke  means  to  say,  that,  if 
the  defendant  admits  the  trust,  though  against  the  policy  of  the  law,  he 
would  relieve;  but  if  he  does  not  admit  the  trust,  then,  the  plaintiff 
stating  he  had  been  guilty  of  a  fraud  upon  the  law  to  evade  the  pro- 
vision of  the  legislature  to  which  he  was  bound  to  submit,  and  coming 
to  equity  to  be  relieved  against  his  own  act,  and  the  defence  also  being 
dishonest,  the  court,  between  the  two  species  of  dishonesty,  would  not 
act,  but  would  say,  "let  the  estate  lie  where  it  falls. "(«•) 

The  distinction  here  taken  by  Lord  Eldon  between  a  bill  filed  by  the 
author  of  the  fraud  himself,  and  by  a  person  taking  through  him  but  not  a 
party  to  the  fraud,  is  supported  by  other  authority,(a;j  and  may  be  illus- 
trated by  the  two  following  cases,  both  arising  out  of  the  same  transaction, 
the  one  before  Lord  Redesdale,  aud  the  other  before  Lord  Mannei's  : — 

John  Brown,  a  trader  in  partnership  with  his  brothers  William  and 
Thomas,  resolved  on  commencing  business  as  a  banker;  and,  for  the 
purpose  of  avoiding  the  penalties  of  the  statute  against  a  banker's  trading, 

(v)   2  Atk.  155. 

(tv)  Muckleston  v.  Brown,  6  Ves.  68  ;  and  see  Chaplin  v.  Chaplin,  3  P.  W.  233  ; 
Hamilton  v.  Ball,  2  Ir.  Eq.  Rep.  191  ;  Groves  v.  Groves,  3  Y.  &  Jer.  163. 

(x)  Matthew  v.  Hanbury,  2  Vern.  187  ;  Brackenbiiry  v.  Brackeuburj',  2  J.  &  W. 
391  ;  Miles  v.  Durnford,  2  Mac.  &  Gord.  643  ;  and  see  Phillpotts  v.  Phillpotts,  10 
Com.  B.  Rep.  85  ;  Groves  v.  Groves,  3  Y.  &  Jer.  163.  See  a  classification  of  the 
cases  in  reference  to  cohabitation  bonds,  3  Mac.  &  Gor.  note  (c),  page  100  ;  Chil- 
ders  V.  Childers,  3  Kay  &  Johns.  310  ;  under  appeal  at  the  date  of  publication. 
February,  1858. — 12 


174  LEWIN    ON    THE    LAW    01    T  R  T  S  T  S,    ETC. 

he  assigned  all  his  interest  in  the  mercantile  concern  to  his  brother 
William  in  trust  for  himself;  and  William  executed  a  declaration  of 
trust  accordingly.  Shortly  afterwards,  William  also,  intending  to  enter 
„-,  into  a  banking-house,  prevailed  on  Thomas  to  become  trustee 
[  13J]  *|^Qj.jj  fQj.  iiimself  and  John,  for  their  respective  shares  in  the 
partnership.  William  Brovra  died,  and  Thomas  Brown,  the  trustee, 
became  bankrupt.  The  legatees  of  William  filed  a  bill  against  the 
assisnees  and  others  to  have  the  benefit  of  the  secret  trust,  and  Lord . 
Redesdale  said,  <'  I  will  not  enter  into  the  question,  whether  William 
mio-ht  not  have  compelled  Thomas  to  account  with  him  as  trustee,  if  he 
had  brought  a  bill  in  his  lifetime ;  but,  as  between  the  creditors  and 
legatees  of  William  (on  the  one  side)  and  Thomas  (on  the  other,)  there 
is  no  doubt,  in  point  of  conscience,  Thomas  was  bound  to  consider  this 
a  trust  for  them ;  and  accordingly  he  does,  after  the  death  of  William, 
acknowledge  himself  to  be  a  trustee.  I  remember  a  case,  where  a  per- 
son, who  was  executor  to  a  smuggler,  on  being  called  on  to  account  for 
the  estate  of  the  testator,  endeavoured  to  avoid  a  considerable  part  of  the 
amount,  by  saying  that  they  were  smuggling  transactions,  on  which  the 
courts  would  not  allow  any  action  to  be  maintained.  The  answer  was, 
all  that  died  with  the  smuggler ;  he  could  not  have  himself  sued,  but 
his  executor  shall  not  set  up  that  as  a  defence  against  his  creditors  and 
legatees."(^) 

Afterwards,  John  Brown  himself  filed  a  bill  in  chancery  to  have  the 
benefit  of  the  trust ;  but  Lord  3Ianners  said,  "  The  bill  in  this  case  is 
brought  by  John  Brown  himself,  and  I  am  quite  clear  that  he  cannot 
recover;  and,  as  he  has  endeavoured  to  make  this  court  ancillary  to  his 
plan  for  evading  the  provisions  of  a  positive  law,  I  must  dismiss  the  bill 
with  costs."(s) 

Where,  however,  the  trust,  though  unlawful,  and  therefore  inoperative, 
is  not  tainted  with  fraud,  the  court  may  grant  relief  even  to  the  settlor. 
Thus,  A.  settled  personal  property  upon  B.  and  C,  and  such  other 
illegitimate  children  of  D.  as  should  be  thereafter  born,  if  they  respec- 
tively attained  the  age  of  25.  B.  and  C.  died  under  25,  but  other 
children  were  born,  and  then  A.  filed  a  bill  for  the  retransfer  of  the 
fund,  and  there  being  no  fraud  on  the  part  of  the  settlor  it  was  so 
directed,  (o) 


[*140] 


^CHAPTER    VIL 

IN   WHAT    LANGUAGE    A    TRUST    MAY    BE    DECLARED. 


A  PERSON  may  declare  a  trust  either  directly  or  indirectly :  the  former, 
by  creating  a  trust  eo  nomine  in  the  form  and  terms  of  a  trust;  the 
latter,  without  aff'ecting  to  create  a  trust  in  words,  by  evincing  an  inten- 

{y)  Joy  V.  Campbell,  1  Sch.  &  Lef.  328,  see  335,  339. 

(z)  Ottley  V.  Browne,  1  B.  &  B.  360 

(a)  Wilkinson  v.  Wilkinson,  1  Y.  &  C.  Ch.  Ca.  657. 


IN    WHAT    TERMS    A    TRUST    MAY    BE    DECLARED.      I75 

tion,  which  the  court  will  effectuate  through  the  medium  of  au  implied 
trust.(l) 


SECTION  I. 

OF   DIRECT   OR   EXPRESS   DECLARATIONS   OF   TRUST. 

In  creating  a  trust,  a  person  need  only  make  his  meaning  clear  as  to 
the  interest  he  intends  to  give,  without  regarding  the  technical  terms  of 
the  common  law  in  the  limitation  of  legal  estates :  an  equitable  fee  may 
be  created  without  the  *word  ''heirs,"  and  an  equitable  entail  |-:i:-|^-j-i 
without  the  words  <<  heirs  of  the  body;"(6)  provided  words  L  J 
which  though  not  technical  are  yet  popularly  equivalent  be  used,  or  the 
intention  otherwise  sufficiently  appear  upon  the  face  of  the  instrument. 

And  if  an  estate  be  devised  unto  and  to  the  use  of  A.  and  his  heirs,  upon 
trust  for  B.,  without  any  words  of  limitation,  B.  takes  the  equitable  fee; 
for  the  whole  estate  passed  to  the  trustees,  and  whatever  interest  they 
took  was  given  in  trust  for  B.(c)  But  if  an  estate  be  conveyed  by  deed 
unto  and  to  the  use  of  a  trustee,  and  his  heirs,  in  trust  for  the  settlor  for 
life,  and  after  her  death  upon  trust  for  her  children,  simply  without  the 
word  heirs,  the  children  by  analogy  to  legal  limitations  take  an  estate  for 
life  only.(c?) 

But  though  technical  terms  be  not  absolutely  necessary,  yet  no  rule  is 
better  established  than  that  where  technical  terms  are  employed,  they 
shall  be  taken  in  their  legal  and  technical  sense.(e) 

Lord  Hardwicke  indeed  said  that,  in  limitations  of  a  trust  either  of  real 
or  personal  estate  to  be  determined  in  that  court,  the  construction  ought 
to  be  the  same  as  in  limitations  of  the  legal  estate,  with  this  distinction. 

{b)  See  Shep.  Touch,  by  Preston,  106. 

(c)  More  v.  Cleghorn,  10  Beav.  423  ;  affirmed  on  appeal,  12  Juris.  591 ;  Knight 
T.  Selby,  3  Man.  &  Gran.  92  ;  Doe  v.  Cafe,  V  Exch.  Rep.  675. 

(d)  Holliday  v.  Overton,  14  Beav.  467,  15  Beav.  480. 

(e)  Wright  v.  Pearson,  1  Ed.  125,  per  Lord  Henley;  Austen  v.  Taylor,  1  Ed. 
361,  per  eundem  ;  Synge  v.  Hales,  2  B.  &  B.  507,  per  Lord  Manners  ;  Jervoise  v. 
Duke  of  Northumberland,  1  J.  &  W.  571,  per  Lord  Eldon  ;  Lord  Glenorchy  v. 
Bosville,  Gas.  t.  Talb.  19,  per  Lord  Talbot ;  Bale  v.  Coleman,  8  Vin.  268,  per  Lord 
Harcourt. 


(1)  The  terms  Implied  Trusts,  Trusts  by  Operation  of  Laic,  and  Constructive 
Trusts,  appear  from  the  books  to  be  almost  synonymous  expressions  ;  but  for  the 
purposes  of  the  present  work  the  following  distinctions,  as  considered  the  most 
accurate,  will  be  observed -.—1.  An  implied  trust  is  one  declared  by  a  party  not 
directly,  but  onlv  by  implication ;  as  where  a  testator  devises  an  estate  to  A.  and 
his  heirs,  not  doubtinrf  that  he  will  thereout  pay  an  annuity  of  20Z.  per  annum  to 
B.  for  his  life,  in  which  case  A.  is  a  trustee   for  B.  to  the  extent  of  the  annuity. 

2.  Trusts  by  operation  of  law  are  such  as  are  not  declared  by  a  party  at  all,  either 
directly  or  "indirectly,  but  result  from  the  effect  of  a  rule  of  equity  ;  as  where  an 
estate  is  devised  to  A.  and  his  heirs,  upon  trust  to  sell  and  pay  the  testator's  debts, 
in  -ivhich  case  the  surplus  of  the  beneficial  interest  results  to  the  testator's  heir. 

3.  Constructive  trusts  (which  form  one  branch  of  trusts  by  operation  of  law,  while 
resulting  trusts  constitute  the  other)  are  such  trusts  as  the  court  elicits  by  a  con- 
struction put  upon  certain  acts  of  parties,  as  where  a  tenant  for  life  of  leaseholds 
renews  the  lease  on  his  own  account,  in  which  case  the  law  gives  the  benefit  of 
the  renewed  lease  to  those  who  were  interested  in  the  old  lease. 


176  LEAVIN    ON    THE    LAAV    OF    TRUSTS,    ETC. 

unless  the  intention  of  the  testator  or  author  of  the  trust  plainly  appeared 
to  the  contrary. (f)  But  this  position  has  since  been  repeatedly  and 
expressly  overruled.  "  I  am  of  opinion/'  said  Lord  Henley,  <■'■  that  a 
limitation  in  a  trust,  perfected  and  declared  by  a  testator,  must  have  the 
same  construction  as  the  devise  of  a  legal  estate  executed ;  and  to  hold 
the  contrary  would  make  property  very  precarious  and  uncertain ;  the 
testator  would  mean  one  thing  in  this  court,  and  the  direct  contrary  on 
the  other  side  of  the  hall."(^)  And  on  another  occasion  he  observed, 
"  I  am  very  clear  that  this  *court  cannot  make  a  different  con- 
[  -'■^-'J  struction  in  the  limitation  of  a  trust,  than  courts  of  law  could 
make  on  a  limitation  in  a  will,  for  in  hoth  cases  the  intention  shall  take 

place,  "(/i) 

As  the  rule  in  Shelley's  case  is  not  one  of  construction,  that  is,  of 
intention,  but  of  law,  and  was  established  to  remedy  certain  mischiefs, 
which,  if  heirs  were  allowed  to  take  as  purchasers,  would  be  introduced 
into  feudal  tenures ;  it  may  be  thought,  that,  as  trusts  are  wholly  inde- 
pendent of  tenure,  they  ought  not  to  be  affected  by  the  operation  of  the 
rule;  and  the  cases  of  Withers  v.  Allgood,(i)  and  Bagshaw  v.  Spencer,(/l-) 
seem  to  lend  some  countenance  to  the  doctrine.  But  not  to  mention  that 
Lord  Hardwicke  himself  appears  in  Garth  v.  Baldwin^  to  have  doubted 
the  position  advanced  by  him  in  Bagshaw  v.  Spencer,  other  subsequent 
authorities  have  now  perfectly  established  the  principle,  that  although 
the  rule  may  not  be  equally  applkaUe  to  trusts,  it  shall  be  equally 
iipplied.{it%\ 

lu  a  recent  case,(n')  a  testator  by  his  will  devised  an  estate  to  his  eldest 
son,  George  Henry  Arnold,  for  99  years  if  he  so  long  lived,  and  subject 
to  the  term  to  Henry  Hoare  and  Thomas  Gilbert,  and  their  heirs,  during 
the  life  of  the  termor  to  preserve  contingent  remainders,  and  after  the 
determination  of  the  said  estates  to  the  heirs  of  the  hody  of  the  said  G. 
H.  Arnold.  Had  the  testator  left  the  devise  in  this  form,  it  is  clear  that 
the  heirs  of  the  body  of  G.  H.  Arnold  would  have  taken  as  purchasers. 
The  testator  afterwards,  by  a  codicil,  confirmed  the  will,  but  devised  all 
his  estates  to  the  use  of  H.  J.  Arnold,  H.  Peters,  H.  Hoare,  and  E.  Mor- 
rison, and  their  heirs,  upon  trust  to  convey  such  parts  thereof  as  they 
should  think  fit  for  securing  a  jointure  of  1200A  to  his  wife,  the  said  H. 
J.  Arnold.  Thus,  by  the  codicil,  the  legal  fee  simple  became  vested  in 
r*14^1  ^^^^  ^^^^  trustees,  and  the  limitations  of  the  will  *became  equi- 
L  J  table,  and  it  was  contended  that  as  the  equitable  estate  for  the 
life  of  G.  H.  Arnold  resulted  to  him  as  the  heir-at-law,  it  united  with 
the  limitation  to  the  heirs  of  his  body  by  the  operation  of  the  rule  in 
Shelley's  case,  and  that  G.  H.  Arnold  consequently  became  tenant  in 

(/)  Garth  v.  Baldwin,  2  Ves.  655.  [y)  Wright  v,  Pearson,  1  Ed.  125. 

[h)  Austen  v.  Taylor,  1  Ed.  3GV  ;  and  see  Philips  v.  Brydges,  3  Ves.  jun.  125  ; 
.Jeryoise  v.  Duke  of  Northumberland,  1  J.  &  W.  571. 

(i)  Cited  in  Bagshaw  v.  Spencer,  1  "Ves.  150 ;    1  Coll.  Jur.  403. 

(A;)   1  Ves.  142;  1  Coll.  Jur.  378,  {I)   2  Ves.  646. 

(m)  Wright  V.  Pearson,  1  Ed.  128  ;  Brydges  v.  Brydges,  3  Ves.  120  ;  Jones  v. 
Morgan,  1  B.  C.  C.  206  ;  Webb  v.  Earl  of  Shaftesbury,  3  M.  &  K.  599  :  Roberts  v. 
Dixwell,  1  Atk.  610,  West,  536  ;  Britton  v.  Twinino-,  3  Mer   176 

(n)  Coape  v.  Arnold,  2  Sm.  &  Gif.  311. 


IN    WHAT    TEEMS    A    TRUST    MAY    BE    DECLARED.      I77 

tail.     It  was  decided,  however,  tliat  under  tlie  circumstance.s  tlielieirs  of 
the  body  of  Gr.  H.  Arnold  took  as  purchasrrs.     The  cases  of  Adams  v. 
Savage,  2  Salk.  679 ;  and  Rawley  v.  Holland,  22  Vin.  Ab.  189,  PI.  11, 
(in  which  it  was  held  that  where  a  term  of  years  is  expressly  limited  to 
the  grantor,  with  a  use  after  his  death  to  the  heirs  of  his  body,  no  result- 
ing use  to  the  grantor  for  his   life   can  be   implied,  as  it  would  be 
repugnant  to  the  term  expressly  limited  to  him,  and  in  fact  destroy  it,) 
were  adverted  to  in  the  judgment  of  the  vice-chancellor  with  seeming 
approbation ;  though  the  decision  was  not  rested  upon  them.     The  autho- 
rity of  these  cases,  however,  has  been  much  disputed,  the  question  being 
one,  not  of  implied  intention  but  of  legal  operation. (0)     And  with  refe- 
rence to  the  decision  itself  it  may  be  observed  that  the  equitable  freehold 
could  not  during  the  life  of  G.  H.  Arnold  be  in  suspense,  and  could  be 
vested  in  no  one  but  G.  H.  Arnold,  the  heir-at-law ;  and  if  so,  the  life- 
estate  to  G.  H.  Arnold,  and  the  limitation  to  the  heirs  of  his  body,  ought, 
according  to  the  general  acceptation  of  the  rule  in  Shelley's  case,  as  one 
not  of  intention  but  of  legal  operation,  to  have  united  and  formed  an 
estate  tail.     The  true  ground  to  which  the  decision  should  be  referred 
appears  to  be  this:  the  codicil  was  made  for  a  particular  purpose,  viz., 
for  securing  the  jointure,  and  as  it  confirmed  the  will  in  all  other  respects, 
the  testator's  intention  evidently  was,  that  after  securing  the  jointure,  the 
trustees  of  the  codicil  should  convey  the  estate  to  the  uses  declared  by  the 
will.     It  was,  therefore,  an  executory  trust,  and  the  question  was  not 
whether  in  mere  equitable  estates  a  life  interest  resulting  to  the  heir-at- 
law  would  unite  with  a  limitation  to  the  heirs  of  his  body,  but  whether 
according  to  the  true  construction  of  the  will  the  settlement  was  not 
meant  to  be  executed  in  such  a  form  as  to  make  the  heirs  of  the  body 
purchasers.     In  this  light  the  question  was  one  of  *intention,  r*-j^^j.-i 
and  not  of  legal  operation.     The  case  was  subsequently  afiirmed  L         -• 
on  appeal  by  Lord  Cranworth,  and  it  is  conceived  substantially,  though 
not  in  terms,  upon  the  ground  above  indicated  as  the  true  principle. (j)) 

We  have  said,  that,  if  technical  words  be  employed,  they  must  be  taken 
in  their  legal  and  technical  sense ;  but  as  to  this,  a  distinction  must  be 
drawn  between  trusts  executed,  and  trusts  that  are  only  executory  :  for  to 
trusts  executed  the  position  is  strictly  applicable,  but  in  the  case  of  trusts 
that  are  executory  it  must  be  received  with  considerable  allowance. 

A  trust  executed  is  where  the  limitations  of  the  equitable  interest  are 
complete  and  final ;  in  the  executory  trust,  the  limitations  of  the  equi- 
table interest  are  intended  to  serve  merely  as  minutes  or  instructions  for 
perfecting  the  settlement  at  some  future  period. 

The  distinction  we  are  considering  was  very  early  established,  and  was 
recognised  successively  by  Lord  Cowper,(r2)  Lord  King,(r)  Lord  Talbot,(.s) 
and  by  no  one  more  frequently  than  by  Lord  Hardwicke  himself ;(/)  yet 

(0)  See  note  hy  Butler  to  Fearne's  Contingent  Remainders,  p.  41. 
{p)   Coape  V.  Arnold,  4  De  Gex,  Mac.  &  Gord.  5f4. 

Iq)  Bale  v.  Coleman,  8  Vin.  267  ;  Earl  of  Stamford  v.  Sir  John  Hobart,  3  B.  P. 
C.  33. 
(r)   Papillon  v.  Voice,  2  P.  W.  471. 
(s)   Lord  Gleuorchy  v.  Bosville,  Cas.  t.  Talbot,  3. 
(<)   Gower  v.  Grosveuor,  Barnard,  62  :  Roberts  v.  Dixwell,  1  Atk.  607  ;  Basker- 


J78  LEWIN    OX    THE    LAAV    OF    TKUSTS,    ETC. 

in  Ba2;shaw  v.  Spencer(?/)  Lord  Hardwicke  almost  denied  that  any  such 
distinction  existed.  "  As  to  the  difference,"  he  said,  "  between  trusts 
executed  and  trusts  executory,  no  one  is  more  unwilling  than  I  am  quieta 
movere ;  but  this  distinction  never  has  been  established  by  any  direct 
resolution,  though  said  arguendo,  and  was  it  to  be  examined  to  the  bot- 
tom, it  might  sound  strange  how  it  should  be  established.  All  trusts  in 
notion  of  law  are  executory,(v)  and  to  be  carried  into  execution  here  by 
suhpoena.  The  first  essential  part  of  a  trust  is,  that  the  trustee  is  to  con- 
vey the  estate  some  time  or  other,  whether  the  testator  has  directed  it  or 
not,  which  every  testator  is  presumed  to  know ;  ^therefore  a  doubt 
L  J  may  be  reasonably  made  how  there  can  be  a  difference,  whether 
the  testator  has  directed  a  conveyance  or  not."  But  in  a  subsequent 
case(!r)  his  lordship  felt  himself  called  upon  to  offer  some  explanation. 
"  He  did  not  mean,"  he  said,  <'  in  Bagshaw  v.  Spencer,  that  no  weight 
was  to  be  laid  on  the  distinction,  but  that,  if  it  had  come  recently  before 
him,  he  should  then  have  thought  there  was  little  weight  in  it,  although 
he  should  have  had  that  deference  for  his  predecessors,  as  not  to  lay  it 
out  of  the  case,  not  intending  to  say  that  all  which  his  predecessors  did 
was  wrong  founded,  which  he  desired  might  be  remembered." 

But  whatever  doubts  may  formerly  have  existed  upon  the  subject, 
they  have  long  since  been  dispelled  by  the  authority  of  succeeding  judges. 
"  The  words  executory  trust,"  said  Lord  Xorthington,  "  seem  to  me  to 
have  no  fixed  signification.  Lord  King  describes  an  executory  trust  to 
be,  where  the  party  must  come  to  this  court  to  have  the  benefit  of  the 
will.  But  that  is  the  case  of  every  trust ;  and  I  am  very  clear,  that 
this  court  cannot  make  a  different  construction  on  the  limitation  of  a 
trust,  than  courts  of  law  would  make  on  a  limitation  in  a  will,  for  in  both 
cases  the  intention  shall  take  place.  The  true  criterion  is  this  :  Wher- 
ever the  assistance  of  this  court  is  necessary  to  complete  a  limitation,  in 
that  case,  the  limitation  in  the  will  not  being  complete,  that  is  sufficient 
evidence  of  the  testator's  intention  that  the  court  should  model  the  limi- 
tations; but  where  the  trusts  and  limitations  are  already  expressly  declared, 
the  court  has  no  authority  to  interfere,  and  make  them  different  from 
what  they  would  be  at  law."(x)  And  Lord  Eldon  observed,  "  Where 
there  is  an  executory  trust,  that  is,  where  the  testator  has  directed  some- 
thing to  be  done,  and  has  not  himself  completed  the  devise,  the  court 
has  been  in  the  habit  of  looking  to  see  what  was  his  intention  ;  and  if 
what  he  has  done  amounts  to  an  imperfection  with  respect  to  the  exeeu- 
r*146"l  ^^^"^  °^  ^^^^  intention,  the  court  inquires  what  it  is  itself  to  do, 
-•  *and  it  will  mould  what  remains  to  be  done,  so  as  to  carry  that 
intention  into  execution :  I  repeat,  where  there  is  a  trust  executory  ;  be- 

ville  V,  BaskerviUe,  2  Atk.  279  ;  Marryatt  v.  Townlv,  1  Ves.  102 ;  Read  v.  Snell, 
i  Atk.  648  ;  Woodhouse  v.  Hoskias,  3  Atk.  24. 

(m)  1  Ves.  152  ;   and  see  Hopkias  v.  Hopkins,  1  Atk.  594. 

(w)   bee  Lord  Eldon's  observations,  Jervoise  v.  Duke  of  Northumberland,  1  J. 

(\v''  ^^"^  ^°^*^  Henley's,  Austen  v.  Taylor,  1  Ed.  366. 

{w)  Exel  V.  Wallace,  2  Ves.  323.  And  Lord  Henlev  once  said,  he  believed  Lord 
narawicke  had  at  last  renounced  his  opinion,  Barnard  v.  Proby,  2  Cox,  8. 

wifi.  I'"  ^-  '^''y^°''  ^  ^^-  ^^'^'  368  ;  and  see  Stanley  v.  Lennard,  1  Ed.  95 ; 
Wright  V.  Pearson,  1  Ed.  125. 


IN    WHAT    TERMS    A    TRUST    MAY    BE    DECLARED.      IJQ 

cause  one  is  a  good  deal  confused  by  tlie  inaccuracy  of  the  expressions 
'trust  executory/  and  'trust  executed.'  The  latter,  no  doubt,  in  one 
sense  of  the  word  is  a  trust  executory,  that  is,  if  A.  B.  is  a  trustee  for 
C.  J).,  or  for  C.  D.  and  others,  that  in  this  sense  is  executory,  that  C. 
D.,  or  C.  D.  and  the  other  persons,  may  call  upon  A.  B.  to  make  a  convey- 
ance,.and  execute  the  trust.  But  these  are  cases  where  the  testator  has 
clearly  decided  what  the  trust  is  to  be ;  and,  as  equity  follows  the  law, 
where  the  testator  has  left  nothing  to  be  done,  but  has  himself  expressed  it, 
there  the  effect  must  be  the  same,  whether  the  estate  is  equitable  or  legal. '  Yi/) 

We  proceed  to  the  inquiry  to  what  extent  in  executory  trusts  a  lati- 
tude of  construction  is  admissible  :  and  to  draw  the  line  correctly,  we 
must  again  distinguish  between  executory  trusts  in  marriage  articles, 
where  the  court  has  a  clue  to  the  intention  from  the  very  nature  of  the 
contract,  and  executory  trusts  in  ivills,  where  the  court  knows  nothing 
of  the  object  in  view  a  priori,  but  in  collecting  the  intention  must  be 
guided  solely  by  the  language  of  the  instrument. 

This  distinction  was  at  first  but  very  imperfectly  understood.  Because 
executory  trusts  under  wills  admitted  a  degree  of  latitude,  it  was  held 
by  some,  they  were  to  be  treated  precisely  on  the  same  footing  as  execu- 
tory trusts  in  marriage  articles  j  while,  because  trusts  under  wills  did 
not  admit  an  equal  latitude  of  construction,  it  was  held  by  others  they 
were  not  to  be  distinguished  from  trusts  executed. (,?)  Even  Lord  Eldon 
once  observed,  "  There  is  no  difference  in  the  execution  of  an  executory 
trust  created  by  will,  and  of  a  covenant  in  marriage  articles ;  such  a  dis- 
tinction would  shake  to  their  foundation  the  rules  of  equity.'Ya)  But 
Lord  Manners  said  he  could  not  assent  to  this  doctrine  jfi)  and  Lord 
Eldon  some  time  after  took  an  opportunity  of  correcting  himself. (c) 

*The  distinction  we  are  considering  has  been  put  in  a  very  r-:!;-i  (--i 
clear  light  by  Sir  W.  Grant.  "  I  know  of  no  difference/'  he  L  *  J 
said,  "between  an  executory  trust  in  marriage  articles  and  in  a  will, 
except  that  the  object  and  purpose  of  the  former  furnish  an  indication  of 
intention  which  must  be  wanting  in  the  latter.  Where  the  object  is  to 
make  a  provision  by  the  settlement  of  an  estate  for  the  issue  of  a  mar- 
riage, it  is  not  to  be  presumed  that  the  parties  meant  to  put  it  in  the 
power  of  the  father  to  defeat  that  purpose,  and  appropriate  the  estate  to 
himself.  If,  therefore,  the  agreement  be  to  limit  an  estate  for  life,  with 
remainder  to  the  heirs  of  the  body,  the  court  decrees  a  strict  settlement 
in  conformity  to  the  presumable  intention.  But  if  a  will  directs  a  limi- 
tation for  life,  with  remainder  to  the  heirs  of  the  body,  the  court  has  no 
such  ground  for  decreeing  a  strict  settlement.  A  testator  gives  arbitra- 
rily what  estate  he  thinks  fit;  the  subject  being  mere  bounty,  the 
intended  extent  of  that  bounty  can  be  known  only  from  the  words  in 
which  it  is  given.     But  if  it  is  clearly  to  be  ascertained  from  any.  thing 

{y)  Jervoise  v.  Duke  of  Northumberland,  1  J.  &  W.  570  ;  and  see  Coape  v. 
Arnold,  4  De  Gex  M.  &  G.  585. 

(z)   See  Bale  v.  Coleman,  8  Vin.  267. 

\a)  Countess  of  Lincoln  v.  Duke  of  Newcastle,  12  Yes.  227,  230 ;  and  see  Tur- 
ner V.  Sargent,  IT  Beav.  519. 

{h)   StraflFord  v.  Powell,  1  B.  &  B.  25;  Synge  v.  Hales,  2  B.  &  B.  508. 

(c)   Jervoise  v.  Duke  of  Northumberland,  1  J.  &  W.  574. 


180 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


in  the  will,  that  the  testator  did  not  mean  to  use  the  expressions  which 
he  has  employed,  in  their  strict  proper  and  technical  sense,  the  court  in 
decreeing  such  settlement  as  he  has  directed,  will  depart  from  his  words 
in  order  to  execute  his  intention."(i) 

To  apply  the  foregoing  distinction  to  the  cases  that  have  occurred  :  if 
in  marriage  artidrs  the  real  estate  of  the  husband  or  wife  be  so  limited 
to  the  heirs  of  the  hodi/,  or  the  issue[c)  of  the  contracting  parties,  or  either 
of  them,  that  heirs  of  the  body,  or  issue,  if  taken  in  their  ordinary  legal 
sense,  would  enable  one  or  other  of  the  parents  to  defeat  the  provision 
intended  for  the  children,  these  words  will  then  be  construed  in  equity 
to  mean  first  and  other  sons ;  and  the  settlement  will  be  made  upon  them 
successively  in  tail,  as  purchasers. (fZ) 

*If  the  settlement  has  been  already  made,  then,  provided  the 
[  -'^^^J  execution  of  it  was  after  the  marriage,  it  will  be  rectified  by  the 
articles  ;(e)  but  if  the  execution  of  it  was  prior  to  the  marriage,  the  court 
will  presume  the  parties  to  have  entered  into  a  different  agreement,(/) 
unless  the  settlement  expressly  state  itself  to  be  made  in  pursuance  of 
the  articles,  when  that  presumption  will  be  rebutted,  and  the  settlement 
will  be  rectified, (^)  or  unless  it  can  be  shown  that  the  settlement  was 
intended  to  be  in  conformity  with  the  articles,  and  there  is  clear  and 
satisfactory  evidence  that  the  discrepancy  has  arisen  from  mistake. (^) 

Under  the  law  as  it  stood  prior  to  the  Fines  and  Recoveries  Act(i)  a 
strict  settlement  was  not  decreed,  where  the  property  of  the  husband  was 
limited  to  the  heirs  of  the  body  of  the  wife  ;  for  this  created  an  entail 
which  neither  husband  nor  wife  could  bar  without  the  concurrence  of  the 
other,  and  the  intent  might  have  been,  that  the  husband  and  the  wife 
jointhj  should  have  the  power  of  destroying  the  entail  ;(ji')  but,  it  is  con- 
ceived, that  as  to  articles  executed  subsequently  to  the  act  referred  to, 
the  case  would  be  otherwise. (Z-) 

Nor  will  the  court  read  heirs  of  the  body  as  first  and  other  sons,  where 
such  a  construction  is  negatived  by  any  thing  in  the  articles  themselves  : 

(6)  Blackburn  v.  Stables,  2  V.  &  B.  369;  and  see  Maguire  v.  Scully,  2  Hog. 
113  ;  Rockford  v.  Fitzmaurice,  1  Conn.  &  Laws.  173  ;  2  Drur.  &  War.  18  ;  4  Ir. 
Eq.  Rep.  375. 

(c)  Dod  V.  Dod,  Amb.  274. 

{d)  Handick  v.  Wilkes,  1  Eq.  Ca.  Ab.  393  ;  Trevor  v.  Trevor,  1  P.  W,  622  ; 
Jones  V.  Langton,  1  Eq.  Ca.  Ab.  392 ;  Cusack  v.  Cusack,  5  B.  P.  C.  116 ;  Griffith 
v.  Buckle,  2  Vern.  13  ;  Stonor  v.  Curwen,  5  Sim.  269,  per  Sir  L.  Shadwell ;  Da- 
vies  V.  Davies,  4  Beav.  54  ;  Rochford  v.  Fitzmaurice,  ubi  supra. 

(e)  Streatfield  v.  Streatfield,  Cas.  t.  Talb.  176  ;  Warrick  v.  Warrick,  3  Atk.  293, 
per  Lord  Hardwicke ;  Legg  v.  Goldwire,  Cas.  t.  Talb.  20,  per  Lord  Talbot ;  Bur- 
ton V.  Hastings,  Gilb.  Eq.  Rep.  113 ;   S.  C.  1  Eq.  Ca.  Ab.  393,  overruled. 

(/)  Legg  V.  Goldwire,  Cas.  t.  Talbot,  20  ;  and  see  Warrick  v.  Warrick,  3  Atk. 
291. 

i'j)  Honor  v.  Honor,  1  P.  W.  123  ;  Roberts  v.  Kingsley,  1  Ves.  238  ;  West  v. 
Errissey,  2  P.  W.  349 ;  but  not  it  seems  against  a  purchaser,  Warrick  v.  Warrick, 
2  Atk.  291.  to  1  ! 

(h)   Bold  V.  Hutchinson,  5  De  Gex,  M.  &  G.  568. 
(0   See  3  &  4  W.  4.  c.  74,  s.  16,  17. 

0)  Howel  V.  Howel,  2  Ves.  358  ;  Whately  v.  Kemp,  cited  ib. ;  Honor  v.  Honor, 
,  ;.  ^J?  '  GvQ^xv  V.  Ekins,  2  Atk.  477,  per  Lord  Hardwicke:  Highway  V.  Ban- 
ner, 1  B.  C.  C.  587,  per  Sir  L.  Kenyon. 

{k)   Rocbfort  v.  Fitzmaurice,  2  Drur.  &  War.  19. 


IN    WHAT    TERMS    A    irvUST    MAY    BE    DECLARED,      jgl 

as  if  one  part  of  an  estate  be  limited  to  the  husband  for  life,  the  remainder 
to  the  wife  for  life,  remainder  to  the  first  and  other  sons  in  tail,  and 
another  part  be  given  to  the  husband  for  life,  remainder  to  the  heirs  male 
of  his  body ;  for,  as  it  appears  the  parties  knew  how  a  strict  settlement 
*should  be  framed,  the  limitation  of  part  of  the  estate  in  a  r:i;i  j^q-i 
diflferent  mode  could  only  have  proceeded  from  a  difierent  in-  L  J 
tention.0 

It  was  formerly  argued,  that  daughters  in  marriage  articles  were  not 
entitled  to  the  same  consideration  as  sons,  on  the  ground  that  they  do 
not,  like  sons,  continue  the  name  of  the  family,  and  are  generally  pro- 
vided for,  not  by  the  estate  itself,  but  by  portions  out  of  the  estate  ;  but 
it  is  now  clearly  settled,  that,  as  they  are  purchasers  under  the  marriage, 
and  are  entitled  to  some  provision,  the  court  will  in  their  favour  construe 
heirs  female  to  mean  daughters  ;fm)  and,  except  the  articles  themselves 
make  an  express  provision  for  them  by  way  of  portion,  kc.,{ii)  will  hold 
daughters,  as  well  as  sons,  to  be  included  under  the  general  term  of 
heirs  of  the  body,(o)  or  issue. (p)  And  the  settlement  will  be  executed 
on  the  daughters,  in  default  of  sons,  as  tenants  in  common  in  tail  gene- 
ral, with  cross  remainders  between  them. (5') 

If  chattels  be  articled  to  be  settled  on  the  parents  for  life,  and  then 
on  the  heirs  of  the  hody  of  either,  or  both,  it  seems  the  chattels  will  not 
vest  absolutely  in  the  parents,  but  in  the  eldest  son  as  the  heir,  though 
taking  by  purchase,  and  if  there  be  no  son,  in  the  daughters  as  co- 
heiresses ;(>•)  and  for  the  son  or  daughters  to  take,  it  is  not  necessary 
that  they  should  survive  the  parents  and  become  the  actual  heir,(s) 
unless  there  be  words  in  the  articles  to  give  it  to  the  heirs  of  the  body 
living  at  the  death  of  the  surviving  parent,  as  "if  the  parent  die  with- 
out leaving  heirs  of  the  body."(A 

Again,  if  in  marriage  articles  a  party  covenant  to  settle  goods  and 
^chattels  upon  the  same  trusts,  and  for  the  same  intents  and  pur-  ^^^  r^-. 
poses,  as  the  freeholds  are  settled,  the  court  will  not  apply  the  L  J 
limitations  to  the  personal  estate  literally,  the  effect  of  which  would  be 
to  vest  the  absolute  interest  in  remainder  in  the  first  son  on  his  birth,  but 
will  insert  a  proviso  that  will  have  the  effect  at  least  to  a  certain  extent, 
of  making  the  personal  estate  follow  the  course  of  the  real. 

Sir  Joseph  Jekyll  said,  the  practice  of  conveyances  was  to  insert  a 
limitation  over  on  "  dying  under  21  j"(«)  but  Lord  Hardwicke  conceived 

{I)  Howel  V.  Howel,  2  Ves.  359  ;  and  see  Powell  v.  Price,  2  P.  W.  535 ;  Cham- 
bers V.  Chambers,  Fitzgib.  Rep.  127  ;  S.  C.  2  Eq.  Ca.  Ab.  35  ;  Rochlbrd  v.  Fitz- 
maurice,  1  Conn.  &  Laws.  174. 

{m)  West  V.  Errissey,  2  P.  W.  349. 

(ra)  Powel  v.  Price,  2  P.  W.  535  ;  and  see  Mr.  Fearne's  observations.  Conting. 
Rem.  103. 

(0)  Burton  v.  Hastings,  Gilb.  Eq.  Rep.  113  ;  S.  C.  1  Eq.  Ca.  Ab.  393,  per  Lord 
Cowper. 

{p)  Hart  V.  Middlehurst,  3  Atk.  371  ;  and  see  Maguire  v.  Scully,  2  Hog.  113  ; 
S.  C.  1  Beat.  370. 

{q)  See  Marryat  v.  Townly,  1  Ves.  105. 

(r)  Hodgeson  v.  Bussey,  2  Atk.  89  ;  S.  C.  Barn.  195.  Sec  Bartlett  v.  Green,  13 
Sim.  218. 

(s)  Theebridge  v.  Kilburne,  2  Ves.  233.  {t)  Read  v.  Snell,  2  Atk.  642. 

(m)  Stanley  v.  Leigh,  2  P.  AV.  690. 


182 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


tlie  common  limitation  over  to  be  on  "  dying  under  21  without  issue."(D) 
In  The  Duke  of  Newcastle  v.  The  Countess  of  Lincoln, (?f)  the  chattels 
were  articled  to  be  settled  to  the  same  uses  as  the  realty,  viz.  to  A.  for 
life,  remainder  to  the  first  and  other  sons  in  tail  male,  remainder  to  B. 
for  life,  remainder  to  B.'s  first  and  other  sons  in  tail  male,  remainders 
over.     A.  died,  having  had  a  son  who  lived  only  nine  months.     Lord 
Loughborough  said,  «  I  perfectly  agree  that  in  wills  you  are  not  to  do 
for  the  testator  all  that  can  be  done  by  law ;  you  are  to  do  for  the  testa- 
tator  no  more  than  what  he  has  intended  to  be  done,  and  according  to 
the  common  acceptation  of  the  words.     But  I  put  it  to  you  whether  in 
the  nature  of  things  there  is  not  a  radical  and  essential  difi"erence 
between  marriage-settlements  and  wills.     The  parties  contract  upon  a 
settlement  for  all  the  remainders;  they  are  not  voluntary,  but  within  the 
consideration  ;  the  issue  are  all  purchasers.     Suppose  then  a  settlement 
to  be  made  of  freehold  estate,  and  as  to  the  leasehold  estate  there  is  only 
this  article,  that  the  settlement  shall  be  analogous  to  that  of  the  free- 
hold :  do  I  execute  it,  and  make  a  like  settlement,  by  giving  an  interest 
which  cuts  off  all  the  issue  ?     Suppose  a  bill  was  brought  to  carry  the 
settlement  into  effect  after  a  child  had  lived  a  single  day,  should  I  per- 
mit the  father  to  say  it  was  his  property  ?     It  is  utterly  impossible  to 
make  the  identical  settlement  of  the  leasehold  estate  as  of  the  freehold  ; 
but  if  I  am  to  make  it  in  analogy  to  the  settlement  of  the  freehold,  shall 
P^l  r-,  n  I  not  carry  it  on  to  all  the  *near  events,  or  shall  they  fail  because 
L         -I  I  cannot  embrace  all  the  remote  events  ?(a;)     My  opinion  de- 
cidedly is,  that,  in  the  case  of  marriage  articles,  the  settlement  should  be 
such   that  no   child  born  and  not  attaining  21  should,   by  his   birth, 
attain  a  vested  interest  to  transmit  to  his  representatives,  and  thereby 
defeat  the  ulterior  objects  of  the  articles,  which  are  not  decidedly  in 
favour  of  one  son,  but  equally  extended  to  every  son  ;  and  that  I  take  to 
be  the  settled  rule  and  established  practice. 'Y^)     His  lordship  therefore 
held  that  the  leaseholds  had  not  vested  absolutely  in  the  deceased  son  of 
A.,  and  ordered  a  proviso  to  be  inserted  in  the  settlement,  that  they 
should  not  vest  absolutely  in  any  son  of  B,  who  should  not  attain  21,  or 
die  under  that  age  leaving  issue  male.     From  this  decision  an  appeal 
was  carried  to  the  house  of  the  lords  -Jz)  but,  before  the  cause  could  be 
heard,  a  son  of  B.  having  attained  21,  the  decree  was,  that  the  son  of  B. 
had  become  absolutely  entitled.     Thus  the  house  of  lords  decided  that 
the  absolute  interest  had  not  vested  in  the  first  tenant  in  tail  on  his 
birth;  but  what  proviso  ought  to  have  been  inserted,  whether  a  limita- 
tion over  "  on  dying  under  21,"  or  "on  dying  under  21  without  issue 
male,"  the  house  in  event  was  not  called  upon  to  determine.    The  order 
of  the  house  of  lords  in  this  case  was  made  with  the  approbation  of  Lord 
EUenborough  and  Lord  Erskine,  who  took  part  in  the  debate  :    and  also 
of  Lord  Thurlow.(a)     But  Lord   Eldon   denied  before  the  house  that 
there  was  any  distinction  between  articles  and  wills,  and  therefore  rely- 

{v)  Gower  v.  Grosvenor,  Barn.  63 ;  S.  C.  5  Mad.  348. 
(w)  3  Ves.  387.  (z)  3  Yes.  394. 

y)  lb.  397.  (^)   12  Ves.  218. 

(a)   12  Ves.  237. 


IN    WHAT    TERMS    A    TRUST    MAY    BE    DECLARED.      1S3 

ing  upon  Foley  v.  Burnell,  and  Vaughan  v.  Burslem,  two  cases  upon 
wills  decided  by  Lord  Thurlow,  he  said  had  the  cause  come  origi- 
nally before  him,  he  should  have  decreed  the  absolute  interest  to  have 
vested  in  the  eldest  child  upon  birth ;  that,  notwithstanding  seve- 
ral dicta  in  favour  of  a  limitation  over,  no  case  could  be  found  in  which 
articles  had  been  actually  so  executed;  that  assignments  had  been  made 
of  leasehold  property  under  the  notion  that  a  son  when  born  would  take 
an  absolute  interest ;  and,  were  the  house  to  sanction  the  decree  of 
Lord  Loughborough,  it  would  shake  a  *very  large  property. (6)  j-.^,  _.^-. 
However,  his  lordship  conceived  that  Lord  Hardwicke's  doctrine  L  '  ""J 
was  originally  the  best,  and  therefore,  recollecting  the  opinion  of  that 
great  judge,  the  opinion  of  Sir  Joseph  Jekyll,  and  the  decision  of  the 
court  below,  and  knowing  the  concurrent  opinions  of  Lord  Ellenborough 
and  Lord  Erskine,  and  also  the  opinion  of  Lord  Thurlow  (whose  present 
sentiments,  however,  he  could  not  reconcile  with  the  cases  of  Foley  v. 
Burnell,  and  Vaughan  v.  Burslem,  formerly  decided  by  his  lordship, )(r) 
he  bowed  to  all  these  authorities ;  and,  though  he  was  in  some  degree 
dissatisfied  with  the  determination,  he  nevertheless  would  not  move  an 
amendment.  ((Z) 

It  must  be  observed,  that  a  settlement  of  the  personalty  cannot  be 
made  exactly  analogous  to  a  settlement  of  the  realty,  whether  the  limi- 
tation adopted  be  "  on  dying  under  21,"  or  "  on  dying  under  21  with- 
out issue."  For  if  the  former  be  supposed,  then,  the  object  of  the 
articles  being  to  knit  the  leasehold  estate  to  the  freehold,  if  the  son  die 
under  age  leaving  issue  who  will  succeed  to  the  freehold,  the  two  estates 
will  go  in  different  directions.  But,  if  the  limitation  over  be  "  on  dying 
under  21  without  issue,"  then,  if  the  son  die  leaving  issue,  the  grand- 
child may  die  under  age  and  unmarried,  when  the  leaseholds  will  go  to 
the  son's  personal  representative,  while  the  freeholds  will  devolve  on  the 
second  son.(e)  The  case  of  the  Countess  of  Lincoln  v.  The  Duke  of 
Newcastle  appears  to  be  the  only  authority  upon  the  subject,  and  that  has 
sanctioned  the  insertion  of  the  proviso,  ''  on  dying  under  21  without  issue." 

Again,  in  marriar/e  articles,  ?l?>  joint-tenancy  is  an  inconvenient  mode 
of  settlement  on  the  children  of  the  marriage  (for,  during  their  minori- 
ties no  use  can  be  made  of  their  portions,  as  the  joint-tenancy  cannot  be 
severed,j(/)  the  court  will  rectify  the  articles  by  the  presumed  intent  of 
the  contract,  and  will  permit  *words  that  would  be  construed  a  |-^,_„-. 
joint-tenancy  at  law,  to  create  in  equity  a  tenancy  in  common. (7)  L         J 

In  other  cases  the  court  has  varied  the  literal  construction  by  supply- 
ing words,  as  where  the  agreement  was  to  lay  out  200^  in  the  purchase 
of  30?.  a-year,  to  be  settled  on  the  husband  and  wife  for  their  lives, 
remainder  to  the  heirs  of  their  bodies,  remainder  to  the  husband  in  fee, 

(b)   12  Ves.  236,  237. 

(cj  Lord  Eldou  could  not  reconcile  Lord  Thurlow's  opinion  with  these  cases, 
because  his  lordship  refused  to  admit  the  distinction  between  articles  and  wills. 

{d)  The  Countess  of  Lincoln  v.  The  Duke  of  Newcastle,  12  Yes.  237. 

(e)  Countess  of  Lincoln  v.  Duke  of  Newcastle,  12  Yes.  228,  229. 

(/)  Taggart  v.  Taggart,  1  Sch.  &  Lef.  88,  per  Lord  Redesdale  ;  and  see  Rigden 
V.  Yallier,  3  Atk.  734,  and  Marryat  v.  Townley,  1  Yes.  103. 

{9)  Taggart  v.  Taggart,  1  Sch.  &  Lef.  84. 


184  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

and,  until  the  settlement  should  be  made,  the  200^.  was  to  be  applied  to 
the  separate  use  of  the  wife ;  and,  if  no  settlement  were  executed  during 
their  joint  lives,  the  200^.  was  to  go  to  the  wife,  if  living;  but,  if  she 
died  before  her  husband,  then  to  her  brother  and  sister;  and  the  wife 
died  before  her  husband,  but  left  issue  ;  it  was  held  the  brother  and 
sister  had  no  claim  to  the  fund,  the  words  "if  she  died  before  her 
husband"  intending  plainly  if  she  so  died  "  without  leaving  issue."(^) 

Next  as  to  icilh;  and  here,  as  no  presumption  arises  a  priori,  that 
"  heirs  of  the  hody,"  were  intended  as  words  of  purchase,  if  the  executory 
trust  of  real  estate  be  to  ''A.  and  the  heirs  of  his  body,"(i)  or  to  "A. 
and  the  heirs  of  his  body  and  their  heirs,"(y)  or  to  A.  for  life  and  after 
his  decease  to  the  heirs  of  his  body,"(^)  the  legal  and  ordinary  construc- 
tion will  be  adopted,  and  A.  will  be  made  tenant  in  tail.  So  where  the 
estate  was  directed  to  be  settled  on  the  testator's  "  daughter  and  her 
children,  and,  if  she  died  without  issue,"  the  remainder  over,  the  court 
said,  that,  by  an  immediate  devise  of  the  land  in  the  words  of  the  will, 
the  daughter  would  have  been  tenant  in  tail,  and  in  the  case  of  a  volun- 
tary devise  the  court  must  take  it  as  they  found  it,  though  upon  the 
like  words  in  marriage  articles  it  might  have  been  otherwise. (?) 
r*i  ^4.-1  ^"^^  where  a  testator  directed  lands  to  be  settled  on  his 
L  -1  <'  nephew  *for  life,  remainder  to  the  heirs  male  of  his  body,  and 
the  heirs  male  of  the  body  of  every  such  heir  male,  severally  and  suc- 
cessively one  after  another  as  they  should  be  in  seniority  of  age  and 
priority  of  birth,  every  elder  and  the  heirs  male  of  his  body  to  be  pre- 
ferred before  every  younger,"  Lord  Cowper  said,  the  nephew  took  by  a 
voluntary  devise,  and,  although  executory,  it  was  to  be  taken  in  the 
very  words  of  the  will  as  a  devise,  and  was  not  to  be  supported  or  carried 
further  in  a  court  of  equity  than  the  same  words  would  operate  at  law  in 
a  voluntary  conveyance.(7?i)  The  decision  apparently  went  upon  the 
ground  that  the  words  '<  and  the  heirs  male  of  the  body  of  every  such 
heir  male,  severally  and  successively,"  &c,,  were  all  included  in  the 
notion  of  an  entail,  and  expressio  corum,  qua:  tacite  insunt,  nihil  ojicratur. 

And  in  a  more  recent  case,  where  the  executory  trust  was  for  A. 
generally,  with  a  direction,  that  the  trustees  should  not  give  up  their 
trust  till  "  a  proper  entail  was  made  to  the  heir  male  by  him,"  it  was 
determined  that  A.  took  an  estate  tail.(?2.)  But,  in  another  case,  where 
the  devise  was  extremely  similar,  viz.,  to  A.  with  a  direction  that  the 
estate  should  be  entailed  on  his  heir  male.  Lord  Eldon,  on  the  assump- 
tion that  it  was  an  executory  trust,  and  not  a  legal  devise,  considered 

{h)  Kentish  v.  Newman,  1  P.  W.  234;  and  see  Targus  v.  Puget,  2  Yes.  194  : 
Master  v.  De  Croisraar,  11  Beav.  184;  Martin  v.  Martin,  2  R.  &  M.  507. 

[i)  Harrison  v.  Naylor,  2  Cox,  247  ;  Bagshaw  v.  Spencer,  1  Yes.  151,  per  Lord 
Hardwiclie  ;  Marshall  v.  Bousfield,  2  Mad.  16G. 

0")  Marryat  v.  Townley,  1  Yes.  104,  per  Lord  Hardwicke. 

{k)  B  ackburn  v.  Stables,  2  Y.  &  B.  370,  per  Sir  W.  Grant :  Seale  v.  Seale,  1 

/n  o      '  ^^'^'^^^  ^-  '^^^"^^'  2  Atk.  266,  per  Sir  J.  Jekyll. 

{t)  bweetapple  v.  Bindon,  2  Yern.  536. 

(to)  Legattv.  Sewell,  2  Yern.  551. 

\fi?  n  Pp'''''''Y°  ""■  '^^^^^es,  2  Y.  &  B.  367  ;  recognized  in  Marshall  v.  Bousfied,  2 
Mad.  166 ;  and  see  Dodson  v.  Hay,  3  B.  C.  C.  405. 


IN    WHAT    TERMS    A    TRUST    MAY    BE    DECLARED.     185 

the  entail  so  doubtful  that  he  would  not  compel  a  purchaser  to  accept  a 
title  under  it.(oj 

But  "  heirs  of  the  body"  will  in  the  case  of  executory  trusts  in  wills 
as  well  as  in  articles  be  read  first  and  other  sons,  provided  the  testator 
expressly  manifest  such  an  intention,  as  if  he  direct  a  settlement  on  A. 
for  life  ''without  impeachment  of  waste,"(p)  or  with  a  limitation  to  pre- 
serve contingent  remainders,(3')  or  if  he  desire  that  "  care  be  taken  in 
the  settlement  that  the  tenant  for  life  shall  not  bar  the  entail  ;"(r)  and 
*in  one  case  "■  heirs  of  the  body"  was  so  construed,  where  a  ^^^  -  r-i 
testator  had  devised  to  the  separate  use  of  a /erne  cooert  for  life,  L  J 
so  as  she  alone  should  receive  the  rent,  and  the  husband  should  not 
intermeddle  therewith,  and  after  her  decease  in  trust  for  the  heirs  of  her 
body;  for,  from  the  limitation  to  the  heirs  immediately  after  the  wife's 
decease,  coupled  with  the  direction  that  the  husband  should  not  inter- 
meddle with  the  estate,  the  court  collected  the  intention  of  excluding 
the  husband's  curtesy,  an  object  which  could  only  be  accomplished  by 
giving  to  "  heirs  of  the  body"  the  construction  of  words  of  purchasers) 

And  a  direction  to  settle  on  A.  and  the  heirs  of  his  body  ''as  counsel 
shall  advise,"(<)  or  «  as  the  executors  shall  think  fit,"(?t)  is  strong  col- 
lateral evidence,  that  something  more  was  intended  than  a  simple  estate 
tail. 

And  Sir  L.  Shadwell  thought  that  if  a  testator  directed  an  estate  to 
be  settled  on  a.  feme  covert  for  life,  for  her  separate  use,  and  at  her  death 
on  her  issue,  the  feme  would  not  be  tenant  in  tail,  for  the  separate  use 
requiring  the  life  estate  to  be  vested  in  trustees,  the  equitable  estate  in 
the  feme  could  not  unite  with  the  legal  estate  in  the  issue,  and  therefore 
the  rule  in  Shelley's  case  would  not  apply.(y)  And  where  the  trust  was 
to  setttle  on  A.  for  life,  icithout  impeachment  of  waste,  with  remainder 
to  his  issue  in  strict  settlement,  the  court  directed  the  estates  to  be  settled 
on  A.  for  life,  without  impeachment  of  waste,  with  remainder  to  his  sons 
successively  in  tail  male,  with  remainder  to  the  daughters,  as  tenants  in 
common  in  tail  male,  with  cross  remainders  in  tail  male,  and  the  proper 
limitations  to  trustees  were  inserted  to  preserve  contingent  remainders. (zp) 

We  may  here  remark  that  "  lieirs  of  the  body"  and  "  issue"  are  far 
from  being  synonymous  expressions.  The  former  are  properly  words  of 
limitation,  whereas  the  latter  term  is  in  its  *primary  sense  a  p-i  Kg-i 
word  of  purchase.  In  several  cases  the  court  appears  to  have  L  J 
ordered  a  strict  settlement  from   the  use  of  the  term  "  issue,"  where, 

(o)  Jervoise  v.  Duke  of  Northumberland,  1  J.  &  W.  559  ;  and  see  Woolmore  v. 
Burrows,  1  Sim.  512. 

{p)  Glenorchy  v.  Bosville,  Cas.  t.  Talbot,  3. 

\q)  Papillon  v.  Voice,  2  P.  W.  471  ;  and  see  Rochford  v.  Fitzmaurice,  1  Conn. 
&  Laws.  158. 

{r)  Leonard  v.  Lord  Sussex,  2  Vern.  526. 

(s)  Roberts  v.  Dixwell,  1  Atk.  607  ;  S.  C.  West's  Rep.  t.  Lord  Ilardwicke,  536. 

\t)  White  V.  Carter,  2  Ed.  366;  reheard,  Amb.  670. 

(m)  Read  v.  Snell,  2  Atk.  642. 

{v)  See  Stonor  v.  Curwen,  5  Sim.  268 ;  Earl  of  Verulam  v.  Bathurst,  13  Sim.  386. 

[w)  Trevor  v.  Trevor,  13  Sim.  108  ;  affirmed  on  this  point,  1  H.  of  L.  Ca.  239 ; 
and  see  Coape  v.  Arnold,  2  Sm.  &  Gif.  311  ;  4  De  Gex,  Mac.  &  Gord.  574. 


X8G  LEAVIX    ON    THE    LAW    OF    TRUSTS,    ETC. 

had  the  expression  been  "heirs  of  the  body/'  the  estate  would  probably 
have  been  construed  an  estate  tail. (as) 

Of  course,  daughters  as  well  as  sons  will  be  included  under  "  heirs  of 
the  body/'(3^)  or  <' issue /'(z)  for  they  equally  answer  the  description, 
and  are  equally  objects  of  bounty;  and  the  settlement  will  be  made 
upon  them  in  default  of  sons,  as  tenants  in  common  in  tail,  with  cross 
remainders  between  (or  amongst)  them. (a) 

In  executing  a  strict  settlement  the  court,  before  the  8  &  9  Yict.  c. 
106  always  took  care  that  proper  limitations  to  trustees  should  be  inserted 
after  the  life  estates  for  the  preservation  of  contingent  remainders  ;(6) 
and,  although  by  the  effect  of  the  act  last  referred  to,  contingent 
remainders  are  no  longer  destructible  by  the  forfeiture,  merger,  or  sur- 
render of  the  previous  life  estate,  the  limitations  to  trustees  to  preserve 
ought  still,  it  is  conceived,  to  be  interposed,  as  well  with  the  view  of 
affording  a  convenient  means  of  protecting  the  interests  of  contingent 
remaindermen  in  the  event  of  wilful  waste  or  destruction  being  com- 
mitted by  the  tenant  for  life  before  any  remainderman  comes  in  e«.se,(c) 
as  with  the  view  of  preserving  the  protectorship,  under  the  Fines  and 
Recoveries  Act,  in  the  event  of  the  destruction  of  the  previous  life  estate. 

In  a  case  occurring  before  the  Fines  and  Recoveries  Act  (3  &  4  W. 
P^-,  r  „-,  4,  c,  74,)  where  the  testator  had  shown  an  anxious  *wish  that 
L  -1  the  power  of  defeating  the  entail  should  be  as  much  restricted 
as  possible,  the  court,  instead  of  giving  the  first  freehold  to  the  tenant 
for  life,  which  would  have  enabled  him  to  make  a  tenant  to  the  praecipe, 
ordered  the  freehold  during  his  life  to  be  vested  in  trustees  in  trust  for 
him.(fZ) 

However  in  a  case  occurring  after  the  Fines  and  Recoveries  Act  where 
an  estate  was  vested  in  a  trustee  upon  trust  to  execute  a  strict  settlement 
on  Lady  Le  Despencer  and  her  family,  and  the  master,  to  whom  a  refer- 
ence was  directed,  approved  of  a  settlement  on  Lady  Le  Despencer  for 
life,  &c.,  but  refused  to  appoint  a  ^ro^ec^or  under  the  32nd  section  of  the 
act,  the  court  held  that,  though  in  certain  cases  it  might  be  advisable 
to  appoint  a  protector,  there  should  be  special  circumstances  to  warrant 
it.  That  the  trustee  was  the  "  settlor"  within  the  meaning  of  the  32nd 
section,  and  had  the  power  to  appoint  a  protector;  and  as  he  did  not 
desire  it,  the  court,  unless  there  were  good  reasons  to  the  contrary,  would 
not  control  his  discretion  ;  that  a  protector  under  the  act  was  an  irres- 

{z)  Ashton  V.  Ashton,  cited  in  Bagshaw  v.  Spencer,  1  Coll.  Jur.  402  ;  Meure  v. 
Meure,  2  Atk.  265  ;  and  see  Home  v.  Barton,  Coop.  25;  Dodson  v.  Hay,  3  B.  C.  C. 
405;  Stonor  v.  Curwen,  5  Sim.  264;  Crozier  v.  Crozier,  2  Conn.  &  Laws.  311  ; 
and  see  Rochford  v.  Fitzmaurice,  1  Conn.  &  Laws.  158;  Bastard  v.  Probj,  2  Cox,  6. 

(y)  Bastard  v.  Proby,  2  Cox,  6. 

(z)  Meure  v.  Meure,  2  Atk.  265;  Ashton  v.  Ashton,  cited  in  Bagshaw  v.  Spen- 
cer, 1  Coll.  Jur.  402  ;  Trevor  v.  Trevor,  13  Sim.  108. 

(a)  ileure  v.  Meure,  Ashton  v.  Ashton,  Bastard  v.  Proby,  and  Trevor  v.  Trevor, 
ubi  supra ;  Marryat  v.  Townley,  1  Ves.  sen.  105. 

(6)  Harrison  v.  Naylor,  2  Cox,  247;  S.  C.  3  B.  C.  C.  108  ;  Woolmore  v.  Bur- 
rows, 1  Sim.  512;  Baskerville  v.  Baskerville,  2  Atk.  279;  Trevor  v.  Trevor,  13 
Atk'  59^ '  ^^^""^^"^^  ^-  Sob^^'t'  3  B.  P.  C.  31 ;  and  see  Hopkins  v.  Hopkins,  1 

(c)  Garth  v.  Cotton,  1  Ves.  554. 

[d)  Woolmore  v.  Burrows,  1  Sim.  512,  see  527. 


IN    WHAT    TERMS    A    TRUST    MAY    BE    DECLARED.      187 

ponsible  person,  and  was  at  liberty  to  act  from  caprice,  ill-will,  or  any 
bad  motive,  and  might  even  take  a  bribe  for  consenting  to  bar  the  entail, 
without  being  amenable  to  the  court,  and  therefore,  on  the  whole,  it  was 
better  not  to  clog  the  settlement  with  a  protector. (e) 

Where  gavelkind  lands  are  the  subject  of  the  executory  trust,  the 
circumstance  of  the  custom  will  not  prevent  the  settlement  upon  the 
first  and  other  sons  successively,  for  the  heirs  take  not  by  custom,  but 
under  the  construction  of  a  court  of  equity,  which  must  be  guided  by 
the  rules  of  the  common  law.(/) 

In  the  foregoing  cases  the  court  has  rectified  the  will  on  the  ground 
of  the  limitations  having  been  imperfectly  declared ;  but  if  a  testator 
direct  a  settlement,  and  be  his  own  conveyancer,  that  is,  declare  the 
limitations  himself,  intending  them  to  be  final,  the  hands  of  the  court 
are  bound,  and  the  words  must  be  taken  in  their  natural  sense. (^)  Thus 
a  testator  ^devised  to  A.  for  life  without  impeachment  of  waste,  ^^-.  r  q-. 
remainder  to  trustees  to  preserve  contingent  remainders,  remain-  L  J 
der  to  the  heirs  of  the  body  of  A.,  remainders  over,  and  then  directed 
the  residue  of  his  personal  estate  to  be  laid  out  in  a  purchase  of  lands, 
and  declared  that  the  lands  when  purchased  ''should  remain  and  con- 
tinue to,  for,  and  upon  such  and  the  like  estate  or  estates,  uses,  trusts, 
intents,  and  purposes,  and  under  and  subject  to  the  like  charges,  restric- 
tions, and  limitations,  as  were  by  him  before  limited,  and  declared  of 
and  concerning  his  lands  and  premises  thereinbefore  devised,  or  as  near 
thereto  as  might  ba,  and  the  deaths  of  parties  would  admit."  Lord 
Northington  observed,  "  It  is  said,  that  if  the  limitations  had  been  repeat- 
ed, it  would  have  been  the  same  with  Papillon  v.  Voice,  (2  P.  W.  471 ;) 
but  I  think  not ;  because  the  testator  refers  no  settlement  to  his  trustees 
to  complete,  but  declares  his  own  uses  and  trusts,  which  being  declared, 
I  know  no  instance  where  the  court  has  proceeded  so  far  as  to  alter  or 
change  them.'Y/t)  However,  the  decision  to  which  his  lordship  came 
seems  not  to  have  met  with  the  entire  approbation  of  Lord  Eldon.  {pj 

In  the  cases  relating  to  executory  trusts  of  chattels  in  wills,  the  be- 
quest, instead  of  being  direct,  has  generally  been  by  way  of  reference  to 
a  previous  strict  settlement  of  realty. 

The  law  upon  this  subject  was  for  a  long  time  in  a  very  fluctuating 
state,  as  will  appear  from  a  review  of  the  cases. 

In  Grower  v.  (xrosvenor,(^)  a  testator  devised  his  real  estate  to  Sir 
Thomas  Grosvenor  for  life,  with  remainder  to  his  first  and  other  sons  in 
tail,  and  in  default  of  issue  to  Robert  Grosvenor  for  life,  with  remainder 
to  his  first  and  other  sons  in  tail,  and  the  testator  then  proceeded.  ''  My 
will  and  mind  is,  that  my  library  of  books,  &c.,  shall  go  as  heir-looms 
as  far  as  they  can  hy  law,  to  the  heirs  male  of  my  family  successively, 

(e)  Bankes  v.  Le  Despencer,  11  Sim.  508. 

{/)  Roberts  v.  Dixwell,  1  Atk.  607. 

(g)  Franks  v.  Price,  3  Beav.  182 ;  and  see  Rocliford  v.  Fitzmaurice,  1  Conn.  & 
Laws.  173;  2  Drur.  &  War.  21. 

ih)  Austen  v.  Taylor,  1  Ed.  361. 

\i)  See  Green  v.  Stephens,  17  Ves.  76  ;  Jervoise  v.  Duke  of  Northumberland,  1 
J.  &  W.  572. 

(A)  5  Madd.  337;  Barnardiston.  54. 


1§8       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

as  my  real  estate  is  hereby  settled."     Sir  Thomas  died  without  issue, 
and  the  bill  was  filed  by  a  legatee  *of  Sir  Thomas  against  Robert 
[*159]  Q^rosvenor,  who  was  the  executor  of  Sir  Thomas,  and  the  tenant 
in  possession  of  the  real  estate,  to  have  the  books,  &c.,  applied  as  part  of 
Sir  Thomas's  personal  estate.     It  was  argued  for  the  plaintiff  that  the 
chattels  had  vested  absolutely  in  Sir  Thomas,  inasmuch  as  he  had  a  son 
who,  as  tenant  in  tail  of  the  real  estate,  might  have  claimed  the  chat- 
tels absolutely,  and  that  the  limitations  after  the  entail,  intended  for 
the  second  son,  were  void  for  remoteness  ',  but  Lord  Hardwicke  held  the 
meanino'  of  the  limitations  as  regards  the  chattels  on   the  death  of  Sir 
Thomas  to  be  in  the  alternative,  that  is,  if  Sir  Thomas  should  have  a 
son,  then  such  son  was  to  take,  but  if  he  should  have  no  son,  then  to  go 
to  Robert  for  life,  with  remainder  to  his  first  and  other  sons,  so  that 
the  limitation  to  Robert  and  his  son  was  not  in  remainder  after  an  entail, 
but  a  contingency  to  be  determined  on   the  death  of  Sir  Thomas ;  that 
as  the  heir-looms  were  to  go  as  far  as  they  could  by  law,  the  testator 
intended  a  settlement  to  be   made  by  the  court,  and  the  trust  being 
executory,  the  proper  limitations  would  be  to  Sir  Thomas  for  life,  with 
remainder  to  his  first  son  absolutely :  but  if  he  died  under  21  without 
issue,  then  to  the  second  son  in  like  manner ;  and  if  he  had  no  such  son, 
then  to  Robert  Grosvenor  for  life,  &c.     The  court,  therefore,  decided 
that  the  chattels  had  not  vested  absolutely  in  Sir  Thomas,  the  tenant  for 
life.     The  point  actually  determined,  viz.,  that  Sir  Thomas  did  not  take 
absolutely,  was  clearly  right ;  but  the  doctrine  laid  down  by  Lord  Hard- 
wicke, that  the  trust  was  executory,  and  that  the  chattels  would  be 
settled  in  the  manner  suggested  by  him,  has  been  much  questioned. (?) 
The  direction  that  chattels  shall  go  along  with  strictly  settled  real  estate, 
<'as  far  as  the  law  will  allow,"  may  either  mean  that  the  chattels  shall 
be  held  upon  the  same  trusts  as  the  real  estate,  so  far  as  the  different 
natures  of  the  two  properties  will  permit,  in  which  case  the  first  tenant 
in  tail  of  the  real  estate  will  be  entitled  to  the  personal  estate  absolutely ; 
or  it  may  intend,  that  the  court  shall  make  such  a  settlement  of  the 
r*l  rm  chattels,  and  insert  in  it  such  limitations  as  will  carry  *them  in  the 
L         -I  same  channel  with  the  real  estate,  for  as  long  a  period  as  by  any 
device  in  the  law  can  be  effected.     In  the  former  construction  the  testa- 
tor is  said  to  be  his  own  conveyancer,  that  is,  he  has  declared  the  limita- 
tions himself,   and  the  legal  consequence  must  follow,  though  it  may 
disappoint  the  object,  by  giving  the  tenant  in  tail  of  the  real  estate  the 
absolute  interest  in  the  personal.      In  the  latter  construction  the  ti'ust  is 
executory  ;  that  is,  the  testator  has  only  expressed  the  general  intention, 
and  has  committed  to  the  trustees  the  duty  of  giving  it  effect  by  inserting 
the  proper  limitations  in  making  the  settlement.     Lord  Hardwicke  enter- 
tained the  first  view,  but  the  latter  has  been  adopted  in  more  recent 
decisions. 

In  Trafford  v.  Trafford,(??))  a  testator  devised  lands  in  trust  for  Sigis- 
mund  for  life,  remainder  to  his  first  and  other  sons  in  tail  male,  remainder 
to  Clement  for  life,  remainder  to  his  first  and  other  sons  in  tail  male,  with 

(l)  See  Countess  of  Lincoln  v.  Duke  of  Newcastle.  12  Ves   228 
[m)  3  Atk.  34'7. 


IN    M'HAT    TERMS    A    TRUST    MAY    BE    DECLARED.      1:^,9 

remainders  over,  and  then  bequeathed  as  follows  :  "  7  devise  all  my 
plate,  &c.,   to  such   male  person  (when  he  shall  attain  the  age  of  21 
years)  who  shall  then  be  entitled  to  the  trust  in  possession  of  the  real 
estate ;  and  /  direct  that  till  such  male  person  shall  attain  21,  the  said 
plate,  &c.,  shall  be  kept  on  D.,  and  be  used  by  such  male  person  residing 
there  :  and  /  declare  it  to  be  my  express  wish  and  desire  that  the  said 
plate,  &c.,  may,  in  the  nature  of /teiV-fooms,  go  with  the  said  estate,  and 
be  used  therewith,  as  long  as  the  law  of  the  realm  will  permit."     Sigis- 
mund  died  without  issue.     Clement  died,  and  the  bill  was  filed  by  his 
eldest  son,  then  an  infant,  to  have  the  heir-looms  delivered  to  him,  which 
the  executrix  of  Sigismund  resisted,  on  the  ground  that  Sigismund,  who 
was  under  21  at  the  date  of  the  will,  had  afterwards,  on  attaining  that  age, 
become  absolutely  entitled.  Lord  Hardwicke  declared  that  the  plaintiff,  on 
attaining  21,  would  take  the  property  of  the  heir- looms,  and  in  the  mean 
time  was  entitled  to  the  use.     The  first  observation  that  occurs  is,  that 
as  the  limitation  of  the  heir-looms,  was  not  to  such  son  of  the  tenants  for 
life,  hut  to  such  male  person  as  should  attain  21,  a  century  might  r:{:-|Q-i-i 
*occur,  through  successive  infancies,  before  the  heir-looms  would  L         J 
be  vested.     The  legality  of  the  direction  might   therefore   have  been 
questioned  in  limine.{ii)     However,  to  pass   by  this   point,  which  was 
overlooked  by  the  court,  the  case  is  remarkable,  as  the  only  instance  in 
which,  under  a  will,  the  court  has  inserted  a  limitation  over  on  the  death 
of  the  tenant  in  tail  under  21.     Possibly  Lord  Hardwicke  might  have 
executed  the  trust  in  this  manner,  in  pursuance  of  the  general  principles 
laid  down  by  him  in  Grower  v.   Glrosvenor ;  but  Lord  Eldon  has  justly 
observed(o)  that  in  Trafford  v.  TraflFord,  the  testator  himself  had  express- 
ly said  that  the  property  should  not  vest  until  that  age.      The  case, 
therefore,  has  been  regarded  by  subsequent  judges  as  resting  upon  its 
own  special  circumstances,  and  not  as  an  authority  for  the  insertion  of 
such  a  limitation  in  ordinary  cases. 

In  Foley  v.  Burnell,(p)  a  testator  bequeathed  all  the  standards,  fix- 
tures, &c.,  "  to  be  held  and  enjoyed  by  the  several  persons  who,  from 
time  to  time,  should  respectively  and  successively  be  entitled  to  the  use 
and  possession  of  the  houses  before  devised  by  him  in  strict  settlement, 
as  and  in  the  nature  of  heir-looms,  to  be  annexed  to  and  go  along  with 
such  houses  respectively,"  and  then  added,  "  it  is  my  will  and  intention, 
that  one  of  the  services  of  plate  should  go  to  and  be  enjoyed  by  the  pos- 
sessor of  W.,  and  the  other  by  the  possessor  of  8.  for  the  time  being." 
Edward  Foley  was  first  tenant  for  life  of  the  real  estate,  and  the  heir- 
looms were  taken  by  the  sheriff"  under  an  execution  against  E.  Foley,  and 
the  bill  was  filed  by  the  first  remainderman  in  tail  to  have  the  heir-looms 
restored.  Lord  Thurlow,in  looking  over  the  evidence,  discovered  that  a 
son  had  been  born  to  E,  Foley,  which  son  had  died  a  few  days  after  birth, 
and  so  dismissed  the  bill,  on  the  ground  that  the  absolute  interest  had 

(h)  See  Lord  Southampton  v.  Marquis  of  Hertford,  2  Yes.  &  Be.  54 ;  The  Coun- 
tess of  Lincohi  v.  Duke  of  Newcastle,  12  Ves.  231 ;  Ibbetson  v.  Ibbetson,  5  Myl. 
&  Cr.  26. 

(o)  See  Countess  of  Lincoln  v.  Duke  of  Newcastle,  12  Ves.  231 ;  and  see  ob- 
servations of  Lord  St.  Leonards,  in  Potts  v.  Potts,  3  Jones  &  Lat.  353. 

(jo)   1  B.  C.  C.  214. 

Febru.ary,  1858.— 13 


190 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


vested  in  E.  Foley,  as  administrator  of  his  deceased  cliild.  From  this 
decision  the  plaintiffs  appealed  to  the  lords  commissioners,  and  the  ques- 
tion was,  whether  the  absolute  interest  had  vested  in  the  *child 
[*162]  gjjjgQiujely,  or  whether  the  court  ought  not,  as  the  trust  was  exe- 
cutory, to  have  inserted  a  limitation  over  to  the  remainderman  on  the 
death  of  the  child  under  21.  Lord  Loughborough  said  there  was  no 
rule  of  law  against  the  latter  construction,  if  the  intention  sufficiently 
appeared ;  but  that  the  court  would  not  act  upon  mere  conjecture.  Lord 
Commissioner  Ashurst  was  of  opinion  that  the  testator  had  been  his  own 
conveyancer,  and  had  declared  his  own  limitations.  Lord  Commissioner 
Hotham  concurred,  and  the  bill  was  dismissed.  An  appeal  was  carried 
to  the  house  of  lords,(^)  when  the  decree  of  the  lords  commissioners 
was  affirmed.  This  case,  if  it  stood  alone,  might  have  been  distinguished 
from  Grower  v.  Grovesnor,  as  in  the  latter  the  will  was  merely  directory, 
while  in  Foley  v.  Burnell  there  was  a  direct  bequest  of  the  heir-looms : 
so  that  in  the  former  case  the  trust  was  executory,  while  in  the  latter  it  was 
a  trust  executed.  However,  this  distinction  has  not  been  observed  in 
more  recent  cases. 

In  Vaughan  v.  Burslem,(;-)  the  testator  said,  "  I  direct  that  all  my 
plate,  &c.,  shall  go  as  heir-looms,  with  my  real  estate,  and  be  held  and 
enjoyed  by  the  person  or  persons  that  shall,  for  the  time  being,  by  virtue 
of  my  will,  be  entitled  to  my  real  estate,  as  far  as  the  rules  of  laic  and 
equiti/  will  permit."  Lord  Thurlow  considered  the  words  ''as  far  as  the 
rules  of  law  and  equity  will  permit"  to  refer  only  to  the  known  rule  that 
the  personal  property  could  not  go  as  far  as  the  real,  and  that  there  was 
no  case  where  the  settlement  had  been  carried  to  the  utmost  extent  of 
what  the  law  might  do.  That  the  words  were  not  sufficient  to  prevent 
the  vesting  of  the  absolute  interest  in  the  first  tenant  in  tail,  and  the 
bill  which  was  filed  by  a  remainderman,  on  the  supposition  that  the  heir- 
looms had  not  vested  absolutely  in  a  prior  tenant  in  tail  who  had  died  an 
infant,  was  dismissed.  Here,  if  in  any  case,  the  trust  was  executory;  and 
yet,  notwithstanding  the  words,  "  that  the  plate,  &c.,  should  go  as  heir- 
looms,"  and  "as  far  as  the  rules  of  law  and  equity  would  permit,"  the 
court  held  the  property  to  vest  absolutely  in  the  first  tenant  in  tail,  though 
he  did  not  attain  21. 

r*i  po-i  *Other  decisions  to  the  same  efi"ect  have  since  followed,(s)  and 
L  J  Gower  v.  Grosvenor,  and  TrafFord  v.  Trafford,  may  be  considered 
as  overruled.  The  law  at  the  present  day  appears  to  be,  that  where  a 
testator  devises  lauds  in  strict  settlement,  and  then  bequeaths  heir-looms 
to  be  held  by  or  in  trust  for  the  parties  entitled  under  the  limitations  of 
the  real  estate,  or  without  making  any  bequest,  directs  or  expresses  a 
desire  that  the  heir-looms  shall  be  held  upon  the  like  trusts,  even  though 
the  testator  should  add  the  words  «  as  far  as  the  rules  of  law  and  equity 
will  permit,"  the  use  of  the  heir-looms  will  belong  to  the  tenant  for  life  of 

(9)  4  Brown's  P.  C.  328.  (;•)  3  b.  C.  C.  101. 

(g)  Carr  v.  Errol,  14  Ves.  478  ;  Lord  Deerhurst  v.  Duke  of  St.  Albans.  5  Madd. 
232;  Stratford  v.  Powell,  1  B.  &  B.  1 ;  Rowland  v.  Morgan,  6  Hare,  463  ';  S.  C.  on 
appeal  2  Phill.  764;  and  see  Countess  of  Lincoln  v.  Duke  of  Newcastle.  12  Ves. 
21  <  ;  Doncaster  v.  Doncaster.  3  K.  &  J.  2G. 


IN    WHAT    TERMS    A    TRUST    MAY    BE    DECLARED.      191 

tlie  real  estate  for  his  life  only,  and  the  property  of  the  heir-looms  will 
vest  absolutely  in  the  first  tenant  in  tail  immediately  on  hi«  birth,  though 
he  afterwards  die  an  infant.  The  court,  in  these  cases,  either  regards 
the  trust  as  executed,  and  not  of  a  directory  character,  or  if  the  trust  be 
executory,  the  court  considers  it  has  no  authority  in  making  a  settlement 
to  insert  a  limitation  over  on  the  tenant  in  tail  dying  under  21.  How- 
ever, there  is  no  unlawfulness  in  such  a  limitation,  so  that  if  a  bequest 
of  heir-looms  in  a  will  be  clearly  executory,  and  the  testator  manifests 
a  distinct  and  unequivocal  intention  that  a  settlement  shall  be  made  of 
the  heir-looms,  and  that  such  clauses  shall  be  inserted  as  will  render  them 
inalienable  for  as  long  a  period  as  the  law  will  permit,  the  court  would 
probably  execute  the  intention  by  settling  the  heir-looms,  and  inserting 
a  limitation,  by  which  the  absolute  interest  in  the  first  tenant  in  tail 
should,  by  his  death  under  21,  be  carried  over,  as  in  the  Countess  of 
Lincoln  v.  Duke  of  Newcastle,  a  case  of  marriage  articles,  to  the  persou 
next  entitled  in  remainder.(?) 

Again,  in  wills,  if  the  words  taken  in  their  usual  sense  would  create  a 
joint-tenancy,  the  court  has  no  authority,  as  it  has  in  articles,  to  execute 
the  trust  by  giving  a  tenancy  in  common ;  *but  where  the  testator  p^,  p , -, 
has  shown  a  desire  of  providing  for  his  children, (i«)  or  putting  L  J 
himself  in  loco  parentis  for  his  grand-children, (r)  the  court  has  adopted 
the  same  construction,  as  in  articles :  however,  in  the  cases  which  have 
occurred,  there  has  always  been  some  accompanying  circumstance  to  de- 
note a  tenancy  in  common,  as  the  estate  really  intended. 

Executory  trusts  in  j^ost-nvptial  settlements,  whether  voluntary  or 
founded  on  a  valuable  consideration-,  will  be  construed  in  the  same  man- 
ner as  executory  trusts  in  wills. (ic) 

We  shall  conclude  this  branch  of  our  subject  with  a  few  observations 
upon  the  powers  to  be  introduced  in  the  execution  of  settlements,  where 
the  trust  is  executory. 

If  the  testator  or  contracting  parties  give  no  directions  as  to  the  inser- 
tion of  powers,  the  court  cannot,  upon  the  ground  of  implied  intention, 
order  a  power  to  be  introduced,(.r)  except  possibly  a  power  of  leasinr/, 
which  differs  from  all  other  powers  in  being  an  almost  necessary  adjunct 
for  the  preservation  of  the  estate  itself.(^)  If  the  authority  be  express- 
ed in  general  terms,  as  "  to  insert  all  usual  powers,''  the  trustees  may  then 
introduce  powers  of  leasing  for  21  years,(2)  of  sale  and  exchange,(a)  of 

(t)  See  the  observations  of  Lord  Loughborough  in  Foley  v.  Burnell,  1  B.  C.  C. 
284,  and  of  Lord  Thurlow  in  Vaughan  v.  Burslem,  3  B.  C.  C.  p.  106. 

(m)  Marryat  v.  Townley,  1  Ves.  102.  (v)  Synge  v.  Hales,  2  B.  &  B.  499. 

(w)  Rochford  v.  Fitzmaurice,  1  Conn.  &  Laws.  158. 

(a;)  Wheate  v.  Hall,  17  Ves.  80,  see  85  ;  and  see  Brewster  v.  Angell,  1  J.  &  "\V. 
628.  In  a  recent  case,  however,  where  a  will  had  simply  directed  a  settlement 
without  authorizing  any  powers  expressly,  the  M.  B.  held  a  tacit  intention  to  be 
implied  that  powers  of  leasing,  sale  and  exchange,  and  appointment  of  new  trus- 
tees, and  of  signing  receipts,  with  provisions  for  maintenance,  education,  and  ad- 
vancement, should  be  inserted.     Turner  v.  Sargent,  17  Beav.  515. 

(y)  See  Fearne's  P.  W.  310;  Woolmore  t.  Burrows,  1  Sim.  518. 

(z)  See  Hill  v.  Hill,  6  Sim.  144  ;  The  Duke  of  Bedford  v.  The  Marquis  of  Aber- 
corn,  1  Myl.  &  Cr.  312. 

(a)  Hill  V.  Hill,  6  Sim.  136  ;  Peake  v.  Penlington,  2  V.  &  B.  311 :  and  see  Wil- 
liams V.  Carter,  Append,  to  Treat,  of  Powers,  No.  5. 


192  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

varying  securities  by  investing  in  government  or  real  securities,(&)  and 
of  appointment  of  new  trustees  ;(c)  and,  it  seems,  where  the  property  is 
joint,  or  contains  mines,  or  is  fit  for  building,  they  may  also  insert  powers 
^  of  partition,  of  ^leasing  mines,  and  of  granting  building  leases. (c?) 
[*165]  <<]3^^j.  jj^gi-e  is  a  palpable  distinction,"  said  Sir  Launeelot  Shad- 
well  <' between  powers  for  the  management  and  better  enjoyment  of  the 
settled  estate,  as  powers  of  leasing,  of  sale  and  exchange,  &c.,  which  are 
beneficial  to  all  parties,  and  powers  which  confer  personal  privileges  on 
particular  parties,  such  as  powers  to  jointure,  to  charge  portions  to  raise 
money  for  any  particular  purpose,  &c."(e)  The  latter,  therefore,  may 
not  be  introduced  under  a  direction  to  insert  imial  powers,  for  they  have 
the  effect  of  diminishing  the  corpus  of  the  settled  estate,  and  the  court 
has  no  rule  by  which  to  determine  the  quantum  of  the  charge. (/)  And 
if  the  will  or  articles  direct  the  insertion  of  some  particular  powers  by 
name,  then,  as  expressio  unius  excluaw  alterius,  the  meaning  of  the  words 
<<  usual  powers"  will  be  materially  qualified.  Thus  where  it  was  stipu- 
lated that  the  settlement  should  contain  a  power  of  leasing  for  21  years 
in  possession,  a  power  of  sale  and  exchange,  of  appointment  of  new  trus- 
tees, and  other  tisual  jwwers,  it  was  held  that  a  power  of  granting  build- 
ing leases  could  not  be  inserted. (^)  So,  if  the  trustees  be  authorized  to 
insert  a  power  of  sale  and  exchange  of  estates  in  the  county  of  Hereford, 
and  all  other  umal poivcrs,  they  would  not  be  justified  in  extending  the 
power  of  sale  and  exchange  to  estates  lying  in  a  different  county. (7i)  And 
where  a  testator  directed  that  the  settlement  should  contain  all  proper 
powers  for  making  leases,  and  otlierioisc  according  to  circumstances,  and 
that  provision  should  also  be  made  for.the  appointment  of  new  trustees,  and 
the  court  was  asked  to  insert  a  power  of  sale  and  exchange,  Lord  Eldon  said, 
"  It  was  held  by  Sir  W.  Grant,  that  unless  the  insertion  of  a  power  were 
authorized  by  the  direction  to  make  a  settlement,  it  could  not  be  introduced  3 
and  if,  where  nothing  is  expressed,  nothing  can  be  implied,  it  is  impossible, 
where  something  is  expressed,  I  can  imply  more  than  is  expressed ;  and 
r*1fifin  particularly  where  the  will  notices  what  powers  are  to  be  given. "(i) 
L  J  But  *where  a  testator  directed  the  insertion  of  powers  of  leasing, 
and  sale  or  exchange,  or  partition,  and  then  added,  '<  And  my  will  is,  that 
in  such  intended  settlement  shall  be  inserted  all  .such  other  proper  and 
reasonable  powers  as  are  usually  inserted  in  settlements  of  the  like  na- 
ture," and  the  question  was  raised,  whether,  under  these  words,  a  power 
of  appointment  of  new  trustees  might  be  introduced,  Lord  Cottenham, 
then  M.  R.,  said,  "He  had  referred  to  the  will,  and  as  he  found  that 
those  general  words  were  in  a  separate  and  distinct  sentence,  he  was  of 
opinion  they  would  authorize  the  insertion  of  the  power."(^) 

(6)  Sampayo  v.  Gould,  12  Sim.  42G. 

(c)  Lindow  v.  Fleetwood,  6  Sim.  152  ;  Brewster  v.  Angell,  1  J.  &  W.  628,  per 
Lord  Eldon  ;  Sampayo  v.  Gould,  12  Sim.  426. 

{d)  See  Hill  v.  Hifl,  6  Sim.  145  ;  The  Duke  of  Bedford  v.  The  Marquis  of  Aber- 
corn,  1  Myl.  &  Cr.  312.  (g)  HUl  y.  Hill,  6  Sim.  144. 

(/)  Higgmson  v.  Barneby,  2  S.  &  S.  516,  see  518. 

[g)  Pearse  v.  Baron,  Jac.  158. 

(h)  Hill  V.  Hill,  6  Sim.  141,  per  Sir  L.  Shadwell. 

(0  Brewster  v.  Angell,  1  J.  &  W.  625 ;  and  see  Home  v.  Barton,  Jac.  439. 

(*j  Lmdow  T.  Fleetwood,  6  Sim.  152. 


IN    WHAT    TERMS    A    TRUST    MAY    BE    DECLARED.      193 

A  testator  had  directed  the  insertion  of  proper  powers  for  making 
leases  or  otherwise  to  be  reserved  to  the  tenants  for  life,  while  qualified 
to  exercise  them,  and,  whenever  disqualified,  to  the  trusteea.  In  the 
execution  of  the  settlement,  a  power  of  sale  and  exchange  was  introduced, 
and  was  limited  to  the  trustees  with  the  consent  of  the  tenant  for  life  ;  but 
it  was  held  by  Lord  Eldon,  that  the  insertion  of  the  power  in  that  mode 
was  not  in  conformity  with  the  instructions. (/)  It  was  afterwards  debated 
before  Sir  T.  Plumer,  whether  a  power  of  sale  and  exchange  could  in  any 
form,  be  admitted  ;  when  his  honor  said,  "  The  first  point  to  be  considered 
is,  in  whom  the  powers  are  to  be  vested ;  and  it  is  clear  that  they  are  to 
be  given  to  the  tenants  for  life,  if  qualified,  and  if  they  should  not  be 
able  to  act,  to  the  trustees. — Now,  if  the  power  of  sale  and  exchange  is 
to  be  given  to  the  tenant  for  life  without  check  or  control,  I  cannot  say 
that  it  is  a  proper  power ;  on  the  contrary,  it  may  be  very  dangerous,  as 
the  tenant  for  life  may,  for  many  reasons,  be  induced  to  sell,  when  it  may 
not  be  for  the  benefit  of  the  remaindermen  ;  nor  is  it  usual  to  give  him 
this  power  without  the  check  of  requiring  the  assent  of  the  trustees. 
Take  it  the  other  way  :  if  the  tenant  for  life  is  disqualified,  as  by  infancy, 
can  the  court  say  it  is  a  proper  power  to  be  given  exclusively  to  the 
trustees?"  And  therefore  his  honor  thought  the  power  of  sale  and 
exchange  could  not  be  introduced,  (m) 

If  a  settlement  of  stock  with  a  power  of  varying  securities  r:}:-i  ey-i 
^contain  a  covenant  to  settle  real  estate  upon  the  like  trusts,  and  L  J 
with  the  like  powers,  a  power  of  sale  and  exchange  is  implied  as  corre- 
sponding with  the  power  of  vari/ing  securities. (ii')  Trusts  are  often 
created  by  words  of  reference  to  other  trusts,  and  where  this  is  the  case, 
care  should  be  taken  to  insert  a  proviso  where  such  is  the  intention,  that 
charges  on  the  estate  shall  not  be  increased  or  multiplied.  Should  the 
clause,  however,  be  omitted,  the  court  will  exercise  its  judgment  on  the 
question  whether  the  duplication  of  charges  was  or  not  intended  by  the 
parties,  (o) 


SECTION  II. 

OP    IMPLIED   TRUSTS. 

Wherever  a  person,  having  a  power  of  disposition  over  property, 
manifests  any  intention  with  respect  to  it  in  favour  of  another,  the  court, 
lohere  there  is  sufficient  consideration,  or  in  a  will  ivhere  consideration  is 
implied,  will  execute  that  intention,  through  the  medium  of  a  trust, 
however  informal  the  language  in  which  it  happens  to  be  expressed. 

A  frequent  case  of  implied  trust  arises  where  a  testator  employs  words 
precatory,  or  recommendatory ,  or  expressing  a  belief  (^2^)     Thus   if  he 

(I)  Brewster  v.  Angell,  1  J.  &  W.  625. 
(in)  Home  v.  Barton,  Jac.  43T. 

(w)  Williams  v.  Carter,  2  Sug.  Pow.  G35  ;  and  see  Home  v.  Barton,  Jac.  440. 
(o)  Hindle  v.  Taylor,  5  De  Gex,  Mac.  &  Gord.  577. 

(p)  Gary  v.  Gary,  2  Sch.  &  Lef.  189,  per  Lord  Redesdale  ;  Paul  v.  Compton,  8 
Yes.  380,  per  Lord  Eldon. 


194 


LEW  IN    ON    THE    LAW    OF    TRUSTS,    ETC. 


^  '[x)  "authorise  and  empower,"(^)  "recommend," (2) 
:hope/'(a)  "do  not  doubt,"(&)  "be  well  assured,"(c)  "  confide," (cZ) 
"have  the  fullest  confidence,"(e)  "trust  and  confide,"(/)  "  have  full 
assurance  and  confident  hope,"(^)  "well  know,"(A)  or  use  such  expressions 
as  "  of  course  the  legatee  will  give,"(i)  "  in  consideration  the  legatee 
has  promised  to  give,"(7i:)  &c.  In  these  and  similar  cases,  the  intention 
of  the  testator  is  considered  imperative,  and  the  devisee  or  legatee  is 
bound,  and  may  be  compelled  to  give  efi'ect  to  the  injunction. 

But  such  a  construction  will  not  in  general  prevail  where  either  the 
objects  intended  to  be  benefited  are  imperfectly  described,(^)  or  the 

(q)  Harding  V.  Glyn,  1  Atk.  469  ;  Mason  v.  Lirabury,  cited  Vernon  v.  "Vernon, 
Amb.  4;  Trot  v.  Vernon,  8  Vin.  72  ;  Pushman  v.  Filliter,  3  Ves.  7  ;  Brest  v.  Offley, 
1  Ch  Rep.  246  ;  Gary  v.  Gary,  2  Sch.  &  Lef.  189  ;  Cruwj-s  v.  Golman,  9  Ves.  319 ; 
and  see  Shaw  v.  Lawless,  L.  &  G.  154;  S.  G.  5  CI.  &  Fin.  129;  S.  C.  LI.  &  G. 
temp.  Plunkett,  559. 

(r)  Eales  v.  England,  Pr.  Ch.  200 ;  Glowdsly  v.  Pellham,  1  Vern.  411. 

(s)  Pierson  v.  Garnet,  2  B.  C.  G.  38  ;  S.  G.  affirmed,  Id.  226 ;  Bade  v.  Bade,  5 
Mad.  118  ;  Moriarty  v.  Martin,  3  Ir.  Ch.  Rep.  26. 

(t)  Birch  V.  Wade,  3  V.  &  B.  198 :  Forbes  v.  Ball,  3  Mer.  437. 

(w)  Foley  v.  Parry,  5  Sim.  138  ;  affirmed,  2  M.  &  K.  138. 

(v)  Prevost  v.  Clarke,  2  Mad.  458 ;  Meredith  v.  Heneage,  1  Sim.  553,  555,  per 
Chief  Baron  Wood;  and  see  Taylor  v.  George,  2  V.  &  B.  378. 

(w)  Meredith  v.  Heneage,  1  Sim.  553,  per  Chief  Baron  Wood. 

[x)  Gary  v.  Gary,  2  Sch.  &  Lef.  189 ;  White  v.  Briggs,  2  PhilL  583. 

(y)  Brown  v.  Higgs,  4  Ves.  708  ;  5  id.  495  ;  affirmed,  8  Ves.  561 ;  and  in  D.  P. 
18  Ves.  192. 

(z)  Tibbits  v.  Tibbits,  Jac.  317  ;  S.  C.  affirmed,  19  Ves.  656  ;  Horwood  v.  West, 

1  S.  &  S.  387  ;  Paul  v.  Gompton,  8  Ves.  380,  per  Lord  Eldon  ;  Malim  v.  Keighley, 

2  Ves.  jun.  333  ;  S.  G.  lb.  529  ;  Malim  v.  Barker,  3  Ves.  150  ;  Meredith  v.  Heneage, 
1  Sim.  553,  per  Chief  Baron  Wood;  Kingston  v.  Lorton,  2  Hog.  16G;  Gholmon- 
deley  v.  Gholmondeley,  14  Sim.  590 ;  Hart  v.  Tribe,  18  Beav.  215 ;  and  see  Meg- 
gison  V.  Moore,  2  Ves.  jun.  630  ;  Sale  v.  Moore,  1  Sim.  534 ;  Ex  parte  Payne,  2  Y. 
&  C.  636  ;  Randal  v.  Hearle,  1  Anst.  124.  As  to  Cunliffe  v.  CunliflFe  (Amb.  686), 
see  Pierson  v.  Garnet,  2  B.  G.  C.  46;  Malim  v.  Keighley,  2  Ves.  jun.  532;  Push- 
man  V.  Filliter,  3  Ves.  9. 

(a)  Harland  v.  Trigg,  1  B.  C.  G.  142  ;  and  see  Paul  v.  Gompton,  8  Ves.  380. 

(b)  Parsons  v.  Baker,  18  Ves.  476;  Taylor  v.  George,  2  V.  &  B.  378  ;  Malone 
V.  O'Connor,  Lloyd  &  Goold.  temp.  Plunkett,  4G5 ;  and  see  Sale  v.  Moore,  1  Sim.  534. 

(c)  Macey  v.  Shurmer,  1  A.tk.  389  ;  S.  G.  Amb.  520.  See  Ray  v.  Adams,  3  M. 
&  K.  237. 

(d)  Griffiths  v.  Evans,  5  Beav.  241. 

(e)  See  Wright  v.  Atkyns,  17  Ves.  255,  19  Ves.  299,  Coop.  Ill,  1  T.  &  R.  143  ; 
Webb  V.  Wools,  2  Sim.  N.  S.  267  ;  Palmer  v.  Simmonds,  2  Drewry,  225;  Barnes 
V.  Grant,  2  Jur.  N.  S.  1127. 

(/)  Wood  V.  Cox,  1  Keen,  317  ;  S.  C.  2  M.  &  G.  684  ;  Pilkington  v.  Boughey, 
12  Sim.  114. 

(g)  Macnab  v.  Whitbread,  17  Beav.  299. 

(h)  Bardswell  v.  Bardswell,  9  Sim.  323  ;  Nowlan  v.  Nelligan,  1  B.  G.  G.  489 ; 
Briggs  V.  Penny,  3  Mac.  &  Gord.  546,  3  De  G.  &  Sm.  525. 

(i)  Robinson  v.  Smith,  6  Mad.  194;  but  see  Lechmere  v.  Lavie,  2  M.  &  K.  197; 
and  see  Leach  v.  Leach,  13  Sim.  304. 

(k)  Clifton  V.  Lombe,  Amb.  519. 

(0  Harland  v.  Trigg,  1  B.  C.  C.  142  ;  Tibbitts  v.  Tibbitts,  19  Ves.  664,  per  Lord 
^Idon ;  Richardson  v.  Chapman,  1  Burn's  Eccles.  Law,  245 ;  Pierson  v.  Garnet,  2 
B.  0.  C.  45,  per  Lord  Kenyon,  S.  C.  id.  230,  per  Lord  Thurlow ;  Knight  v.  Knight, 
3  lieav.  173,  per  Lord  Langdale ;  Sale  v.  Moore,  1  Sim.  534;  Gary  v.  Gary,  2  Sch. 


IN    WHAT    TERMS    A    TRUST    MAY    BE    DECLARED.      195 

amount  of  the  property  to  whicli  the  trust  *should  attach  is  not  p:^-.,.Q-, 
sufl&ciently  defined ;(?«)  for  the  difficulty  that  would  attend  the  L  J 
execution  of  such  imperfect  trusts  is  converted  by  the  court  into  an  argu- 
ment that  no  trust  was  really  intended  :(?i)  but  although  vagueness  in  the 
object  will  unquestionably  furnish  reason  for  holding  that  no  trust  was 
intended,  this  may  be  countervailed  by  other  considerations ;  and  if  it 
appear  clearly  that  a  trust  was  intended,  though  the  objects  are  not  suffi- 
ciently defined,  there  will  be  a  resulting  trust  for  the  benefit  of  the  heir- 
at-law,  or  next  of  kin,  according  to  the  nature  of  the  property.(o)  The 
rule  as  laid  down  by  Lord  Alvanley  and  since  recognised  as  the  correct 
principle  was  this,  "Wherever  a  testator  points  out  the  objects,  the  pro- 
perty, and  the  loay  in  whicli  it  shall  go,  that  creates  a  trust  unless  there 
are  plain  express  words  or  necessary  implication  that  he  does  not  mean 
to  take  away  the  discretion,  but  intends  to  leave  it  to  be  defeated. (p) 

The  objects  have  been  held  to  be  uncertain  where  personal  estate  has 
been  given  to  A.,  with  a  hope  "that  he  would  continue  it  in  the 
family  ;"{q)  but,  as  regards  personal  estate,  the  word  family  has  been 
sometimes  construed  as  equivalent  to  relations,  that  is  next  of  kin  ;(r) 
and  where  freeholds  were  so  devised,  it  was  held  that  by  "  family"  was 
to  be  understood  *the  worthiest  member  of  it,  viz.  the  heir-at-  r^^i^A-, 
law.(.s)  Even  in  freeholds,  however,  the  designation  was  held  to  L  J 
be  too  uncertain  where  the  request  was  to  distribute  "  amongst  such 
members  of  the  person's  family"  as  he  should  think  most  deserving.  (A 
In  another  case  both  real  and  personal  estate  were  blended  together,  and 
given  to  A.,  in  full  confidence  that  she  would  devise  the  whole  of  the 
estate  to  "  such  of  the  heirs  of  the  testator's  father  as  she  might  think 
best  deserved  a  preference,"  and  the  court  could  not  determine  whether 
heirs  were  intended,  or  next  of  kin,  or  both.(«J     Again,  a  residuary 

&  Lef.  189,  per  Lord  Redesdale  ;  Meredith  v.  Heneage,  1  Sim.  542,  see  558,  559, 
565 ;  Ex  parte  Payne,  2  Y.  &  C.  636. 

(m)  Lechmere  v.  Lavie,  2  M.  &  K.  197  ;  Knight  v.  Knight,  3  Beav.  148  ;  Mere- 
dith V.  Heneage,  1  Sim.  556 ;  Buggins  v.  Yates,  9  Mod.  122  ;  Sale  v.  Moore,  1  Sim. 
534;  Anon,  case,  8  Vin.  72;  Tibbits  v.  Tibbits,  19  Ves.  664,  per  Lord  Eldon  ; 
Wynne  v.  Hawkins,  1  B.  0.  G.  179;  Pierson  v.  Garnet,  2  B.  G.  G.  45,  per  Lord 
Kenyon ;  S.  G.  lb.  230,  per  Lord  Thurlow ;  Bland  v.  Bland,  2  Cox,  349  ;  Le  Maitre 
v.  Bannister,  cited  in  note  to  Bales  v.  England,  Pr.  Gh.  200  ;  Sprange  v.  Barnard, 
2  B.  C.  G.  585  ;  Pushman  v.  Filliter,  3  Ves.  7 ;  Attorney-General  v.  Hall,  Fitzg. 
314  ;  Wilson  v.  Major,  11  Ves.  205  ;  Bade  v.  Bade,  5  Mad.  118  ;  Gurtis  v.  Rippon, 
5  Mad.  434  ;  Russell  v.  Jackson,  10  Hare,  213. 

(n)  Morice  v.  Bishop  of  Durham,  10  Ves.  536,  per  Lord  Eldon. 

(0)  Briggs  V.  Penny,  3  Mac.  &  Gor.  546. 

(jo)  Malim  v.  Keighley,  2  Ves.  jun.  335.  See  Knight  v.  Boughton,  11  CI.  & 
Fin.  548,  551. 

(q)  Harland  v.  Trigg,  1  B.  G.  C.  142.  See  Wright  v.  Atkyns,  Coop.  121; 
Woods  V.  Woods,  1  M.  &  C.  401 ;  Re  Parkinson's  Trust,  1  Sim.  N.  S.  242  ;  Wil- 
liams V.  Williams,  1  Sim.  N.  S.  321  ;  but  see  White  v.  Briggs,  2  Phill.  583  ;  and 
Liley  v.  Hey,  1  Hare,  580.  (/•)  Cruwys  v.  Colman,  9  Ves.  319. 

(s)  Atkyns  v.  Wright,  17  Ves.  255;  S.  G.  19  Ves.  299;  S.  G.  Coop.  Ill  ;  and 
see  S.  C.  1  Turn.  &  Russ.  143  ;  Malone  v.  O'Connor,  Lloyd  &  Goold.  temp.  Plun- 
kett,  465  ;  Griffiths  v.  Evans,  5  Beav.  241  ;  White  v.  Briggs,  2  Phill.  583  ;  Green 
V.  Marsden,  1  Drewry,  646. 

(t)  Green  v.  Marsden,  1  Drewry,  646. 

(u)  Meredith  v.  Heneage,  1  Sim.  542,  see  558,  559,  565  ;  but  see  Wright  v.  At- 
kyns, Coop.  119. 


196       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

estate  was  bequeathed  to  A.,  with  a  recommendation  that  she  would 
«  consider  the  testator's  relations."  Sir  A.  Hart  asked,  "Who  are  the 
objects  of  the  trust  ?  Did  the  testator  mean  relations  at  his  own  death, 
or  at  A's  death  ?  Did  he  mean  that  she  should  have  the  liberty  of  exe- 
cuting the  trust  the  day  after  his  death  V  And  his  honor  was  of  opinion 
that  no  trust  could  attach. (y)  But  there  can  be  no  uncertainty  of  the 
objects  where  such  a  trust  is  to  be  executed  by  will,  for  then  those  who 
answer  the  description  at  the  death  of  the  donee  of  the  power  must  be 
the  parties  contemplated. (m^) 

The  court  has  refused  to  establish  the  trust  from  the  uncertainty  of 
the  snhject,  that  is,  of  the  property  intended  to  be  bound  by  the  trust, 
where  the  recommendation  has  been  to  <<  consider  certain  persons,"(x) 
'<  to  be  kind  to  them,"(^_y)  to  "remember  them, "(2)  "to  do  justice  to 
P^,  ^,-,  them,"(a)  "  to  make  *ample  provision  for  them, "(6)  "  to  use  the 
L  J  property  for  herself  and  her  children,  and  to  remember  the  church 
of  God,  and  the  poor,'Vc)  "  to  give  what  should  remain  at  his  death,  or  what 
he  should  die  seised  or  possessed  of," (fZ)  "  to  finally  appropriate  as  he 
pleases,"  with  a  recommendation  to  divide  amongst  certain  persons,(e)  to 
divide  and  dispose  of  the  savings,(/)  or  the  bulk  of  the  property,((7)  or 
wherever  the  donee  of  the  property  has  had  power  to  dispose  of  any  part  he 
pleased,  whether  expressly  given  him,  or  arising  from  implication,  or  from 
the  nature  of  the  subject. (A)  But  where  the  recommendation  was,  that  the 
legatee,  in  ease  she  married  again,  should  settle  what  she  possessed  under 
the  testator's  will  to  her  separate  use,  and  should  bequeath  what  she 
should  die  possessed  of  under  the  will  in  favour  of  certain  persons,  it  was 
held  that  the  iclwle  personal  estate  was  overreached  by  the  trust.  Sir 
John  Leach  said,  "  the  testator  directs,  that  upon  a  marriage,  whenever 
a  second  marriage  may  happen,  the  whole  of  the  property  shall  be  secured, 
and  a  power  to  dispose  of  any  part  of  the  property  absolutely,  at  any  time 
during  her  life,  is  not  to  be  reconciled  to  that  provision.  I  must  there- 
fore consider  that,  when  he  recommends  her  to  give  what  she  shall  die 

{v)  Sale  V.  Moore,  1  Sim.  534,  see  540 ;  and  see  Macnab  v.  Whitbread,  17  Beav. 
299;  but  see  Wright  v.  Atkyns,  Coop.  119-123. 

(w)  Pierson  v.  Garnet,  2  B.  C.  C.  38;  S.  C.  id.  226;  Atkyns  v.  Wright,  U  Ves. 
255;  S.  C.  19  Ves.  299;  S.  C.  Coop.  Ill;  and  see  S.  C.  1  Turn.  &  Russ.  162  ; 
Knight  V.  Knight,  3  Beav.  173 ;  Meredith  v.  Heneage,  1  Sim.  558. 

(z)  Sale  V.  Moore,  1  Sim.  534  ;  and  see  Hoy  v.  Master,  6  Sim.  568. 

(y)  Buggins  v.  Yates,  9  Mod.  122. 

[z)  Bardswell  v.  Bardswell,  9  Sim.  319. 

(a)  Le  Maitre  v.  Bannister,  Pr.  Ch.  200,  note  (1)  ;  Pope  v.  Pope,  10  Sim.  1. 

(6)  Winch  v.  Brutton,  14  Sim.  379. 

(c)  Curtis  V.  Rippoc,  5  Mad.  434. 

(rf)  Sprange  v.  Barnard,  2  B.  C.  C.  585  ;  Green  v.  Marsden,  1  Drewry,  646; 
Pushman  v.  Pilliter,  3  Ves.  7;  Wilson  v.  Major,  11  Ves.  205;  Bade  v.  Bade,  5 
Mad.  118  ;  Wynne  v.  Hawkins,  1  B.  C.  C.  179;  Lechmere  v.  Lavie,  2  M.  &  K.  197; 
Bland  V.  Bland,  2  Cox,  349  ;  Attorney-General  v.  Hall,  Fitzg.  314  ;  and  see  Mere- 
dith V.  Heneage,  1  Sim.  556  ;  Tibbits  v.  Tibbits,  19  Ves.  664  ;  Pope  v.  Pope,  10 
Sim.  1.  >  !        I  1    . 

(«)  White  V.  Briggs,  15  Sim.  33.  (/)  Cowman  v.  Harrison,  10  Hare,  234. 

(,9)  Palmer  V.  Simmonds,  2  Drewry,  221. 

(A)  Malim  v.  Keighley,  2  Ves.  jun.  531,  per  Lord  Loughborough  ;  and  see  Knight 
v^ Knight,  3  Beav.  174  ;  11  CI.  &  Fin.  513  ;  Huskisson  v.  Bridge,  4  De  Gex  &  Sm. 


IN    WHAT    TERMS    A    TRUST    MAY    BE    DECLARED.      I97 

possessed  of,  lie  had  in  view  tlie  whole  property  whicli  she  should  possess 
under  his  will."(t) 

And  where  both  objects  and  property  are  certain,  yet  no  trust  will 
arise,  if  the  testator  expressly  declares  that  the  language  is  not  to  be 
deemed  imperative,  or  the  construing  it  a  trust  would  be  a  contradiction 
to  the  terms  in  which  the  preceding  bequest  is  given, (y)  or  if,  all  cir- 
cumstances considered,  *it  is  more  probable  the  testator  meant  ^^-.  „p-, 
to  communicate  a  mere  discretion  -Jk")  as  if  he  at  the  same  time  L  "^J 
declare  that  the  estate  shall  be  "unfettered  and  uulimited,"(/)  or  if  he 
"recommend  but  do  not  absolutely  enjoin, "(m)  or  if  the  gift  be  abso- 
lutely to  A.,  with  words  expressing  merely  the  rea>ion  or  motive  with 
which  the  gift  is  made,  as  "  to  enable  him  to  assist  such  of  the  children 
of  B.  as  he  shall  find  deserving  of  encouragement.'7«)  The  construc- 
tion of  the  words  we  are  considering  never  turns  on  their  grammatical 
import,  they  may  be  imperative,  but  are  not  necessarily  so.(o)  In  Shaw 
V.  Lawless,(jj)  the  trustees  were  recommended  to  employ  a  receiver, 
and  Lord  Cottenham,  alluding  to  that  case,  observed,  "It  was  there  laid 
down  as  a  rule  which  I  have  since  acted  upon,  that  though  '  recommen- 
dation' may  in  some  other  cases  amount  to  a  direction  and  create  a  trust, 
yet,  that  being  2,  flexible  term,  if  such  a  construction  of  it  be  incon- 
sistent with  any  positive  provision  in  the  will,  it  is  to  be  considered  as  a 
recommendation  and  nothing  more.  In  that  case  the  interest  supposed 
to  be  given  to  the  party  recommended  wasinconsisteut  with  other  powers 
which  the  trustees  were  to  exercise,  and  those  powers  being  given  in 
unambiguous  terms,  it  was  held  that  as  the  two  provisions  could  not 
stand  together,  the  flexible  term  was  to  give  way  to  the  inflexible 
term. "(2) 

And  if  a  trust  be  created,  it  does  not  follow  that  it  shall  be  equally 
restrictive,  as  where  the  trust  is  properly  such.  Thus  an  estate  was 
devised  to  A.  and  her  heirs,  "  in  the  fullest  confidence"  that  after  her 
decease  she  would  devise  the  property  to  the  family  of  the  testator ;  and 
Lord  Eldon  asked,  *"  Is  there  any  case  in  which  the  doctrine  ^^^  -o-i 
has  been  carried  so  far,  that  the  tenant  in  fee  shall  not  be  at  L  J 
liberty,  with  respect  timber  and  mines,  to  treat  the  estate  in  the  same 
husbandlike  manner  as  another  tenant  in  fee  ?"  and  his  lordship  said  he 
should  hesitate  a  long  time  before  he  held  that  the  person  bound  by  the 

{i)  Horwood  v.  West,  1  S.  &  S.  387. 

(/)  Webb  V.  Wools,  2  Sim.  N.  S.  267  ;  Huskisson  v.  Bridge,  4  De  Gex  &  Sm. 
245. 

{k)  Bull  V.  Vardy,  1  Ves.  juu.  270  ;  Knott  v.  Cottee,  1  Pliill.  292  ;  Knight  v. 
Knight,  3  Bear.  148  ;  Meggison  v.  Moore,  2  Ves.  jun.  630  ;  Hill  \.  Bishop  of  Lon- 
don, 1  Atk.  618  ;  and  see  Paul  v.  Compton,  8  Ves.  380;  Knight  v.  Knight,  3 
Beav.  174,  11  CI.  &  Fin.  513  ;  Lefroy  v.  Flood,  4  Ir.  Ch.  Rep.  1. 

{I)  Meredith  v.  Heneage,  1  Sim.  542  ;  S.  C.  10  Price,  230  ;  Hoy  v.  Master,  6 
Sim.  568. 

(m)  Young  y.  Martin,  2  Y.  &  C.  Ch.  Ca.  582. 

{n)  Benson  v.  Whittam,  5  Sim.  30  ;  Thorp  v.  Owen,  2  Hare,  611. 

(0)  Meggison  v.  Moore,  2  Ves.  jun.  632,  per  Lord  Loughborough ;  and  see 
Johnston  v.  Rowlands,  2  De  Gex  &  Sm.  358,  per  Vice-Chancellor  Knight  Bruce. 

[p)  LL  &  Goold,  t.  Sugden,  154;  5  CI.  &  Fin.  129  ;  Lloyd  &  Goold.  t.  Plun- 
kett,  559. 

{q)  Knott  V.  Cottee,  2  Phill.  192. 


198       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

trust  was  not  entitled  to  cut  timber  in  the  ordinary  management  of  the 
property.(r)     And  so  it  was  afterwards  decided  by  the  house  of  lords 

on  appeal. (*•)  .         ■,     j       •        n 

The  current  of  decisions  has  of  late  years  set  against  the  doctrine  ot 
converting  the  devisee  or  legatee  into  a  trustee.(?) 

Of  course,  where  the  words  are  construed  in  equity  to  raise  a  partial 
trust,  the  devisee  or  legatee  is  deemed  a  trustee  to  the  extent  only  of 
the  charge,  and  the  surplus  will  not  result  to  the  heir  or  next  ofkin,  but 
will  belong  to  the  devisee  or  legatee  beneficially. (it) 

But  if  a  trust  be  established  as  to  the  u-Jwh  property  given,  and  the 
objects  of  the  trust  for  any  reason  fail,  the  ichole  beneficial  interest  will 
be  a  resulting  trust  in  favour  of  the  testator's  real  or  personal  represen- 
tative, (v) 

Again  (to  proceed  with  the  instances  of  implied  trusts,)  if  a  person 
by  will  direct  his  realty  to  be  sold,  or  charge  it  with  debts  and  legacies,(u-) 
or  with  any  particular  legacy,(a:)  the  legal  estate  may  descend  to  the 
heir,  or  it  may  pass  to  a  devisee  ;  but  the  court  will  view  the  direction 
as  an  implied  declaration  of  trust,  and  will  enforce  the  execution  of  it 
against  the  legal  proprietor. 

Again,  if  a  person  agrees  for  valuable  consideration  to  settle 
[  ■'•''*]  *a  specific  estate,  he  thereby  becomes  a  trustee  of  it  for  the  in- 
tended objects,  and  all  the  consequences  of  a  trust  will  follow;(y)  and  so 
if  he  covenant  to  charge  all  lands  that  he  may  possess  at  a  particular 
time,(2)  or  at  any  time,(«)  he  will  be  a  trustee  of  such  lands  to  the 
extent  of  the  charge.  And  even  if  a  person  engages  on  his  marriage  to 
settle  all  the  personal  estate  that  he  may  acquire  during  the  coverture, 
the  trusts  upon  which  it  is  so  agreed  the  personalty  shall  be  settled  will 
fasten  upon  the  property  as  it  falls  into  possession  ;  and  if  the  money 
has  been  laid  out  in  a  purchase,  may  be  followed  into  the  land.(?/) 

Again,  if  a  person  contract  to  sell  another  an  estate,  the  vendor  has 
impliedly  declared  himself  a  trustee  in  fee  for  the  purchaser,  and  is 
accountable  to  him  for  the  rents  and  profits  ;(c)  and  if  the  tenants  have 

(r)  See  Wright  v.  Atkyns,  Turn.  &  Russ.  157,  163. 

(«)  See  Lawless  v.  Shaw,  Lloyd  &  Goold,  t.  Sugden,  164. 

(t)  Sale  V.  Moore,  1  Sim.  540 ;  and  see  Meredith  v.  Heneage,  id.  566  ;  Lawless 
V.  Shaw,  1  Lloyd  &  Goold,  164;  Knight  v.  Knight,  3  Beav.  148;  Williams  v. 
Williams,  1  Sim.  N.  S.  358 ;  Lefroy  v.  Flood,  4  Ir.  Chan.  Rep.  9. 

(m)  Wood  V.  Cox,  1  Keen,  317  ;  reversed,  2  M.  &  C.  684. 

(v)  Briggs  V.  Penny,  3  Mac.  &  Gord.  546,  3  De  G.  &  Sm.  525. 

{iv)  Pitt  V.  Pelham,  2  Freem.  134  ;  S.  C.  1  Ch.  Re.  283  ;  Locton  v.  Locton,  2 
Freem.  136;  Asby  v.  Doyl,  1  Ch.  Cas.  180;  Tenant  v.  Brown,  ib.;  Garfoot  v. 
Garfoot,  1  Ch.  Ca.  35;  S.  C.  2  Freem.  176;  Gwilliams  v.  Rowel,  Hard.  204  ; 
Blatch  V.  Wilder,  1  Atk.  420  ;  Carvill  v.  Carvill,  2  Ch.  Re.  301  ;  Cook  v.  Foun- 
tain, 3  Sw.  592 ;  Bennet  v.  Davis,  2  P.  W.  318,  &c. 

(z)  Wigg  V.  Wigg,  1  Atk.  382. 

(y)  Finch  V.  Winchelsea,  1  P.  W.  277  ;  Freemoult  v.  Dedire,  ib.  429  ;  Kennedy 
V.  Daly,  1  Sch.  &  Lef.  355  ;  Legard  v.  Hodges,  1  Ves.  jun.  477  ;  S.  C.  3  B.  C.  C. 
531,  4  B.  C.  C.  421  ;  Ravenshaw  v.  Hollier,  7  Sim.  3. 
(z)  Wellesley  v.  Wellesley,  4  M.  &  C.  561. 

(a)  Lyster  v.  Burroughs,  1  Drury  &  Walsh,  149. 

(b)  Lewis  v.  Madocks,  8  Ves.  150 ;  S.  C.  17  Ves.  48. 

(c)  See  Acland  v.  Gaisford,  2  Mad.  32 ;  Wilson  v.  Clapham,  1  J.  &  W.  38. 


^ 


OF    RESULTING    TRUSTS.  199 

been  allowed  improperly  to  run  in  arrear,(f?)  or  there  lias  been  unhus- 
bandlike  farming,(c)  or  any  other  injury  done,  either  by  the  wilful  waste 
or  neglect  of  the  vendor,(/)  he  is  answerable  to  the  purchaser  as  for  a 
breach  of  trust.  On  the  other  hand,  if  any  damage  arise  to  the  estate, 
not  by  the  default  of  the  vendor,  as  by  fire,(^)  or  dilapidations, (A)  the 
loss  will  fall  on  the  purchaser ;  and  if  the  accident  by  which  the  damage 
arises  brings  with  it  legal  obligations  which  must  be  immediately  satisfied, 
and  which  the  vendor  satisfies,  the  expense  thus  incurred  must  be  borne 
by  the  purchaser ;(/)  and  so,  should  the  estate  become  by  any  accident 
more  valuable,  the  purchaser  will  take  the  improvement.(^')  It  p^TSI 
*should  be  observed,  however,  that  the  vendor  is,  after  all,  a  L  J 
trustee  sub  moclo  only,  for  he  cannot  be  compelled  to  deliver  up  the 
possession  until  the  purchase-money  has  been  paid.(?)  And  so  the  piir- 
cliaser  is  only  a  cestui  que  trust  sub  moclo,  and  he  cannot  enforce  any 
equitable  rights  attached  to  the  estate  until  the  contract  has  been  com- 
pleted, (m) 

It  would  be  endless  to  pursue  implied  trusts  through  all  their  ramifi- 
cations, but  the  general  principles  may  be  collected  from  the  examples 
given. 


♦CHAPTER    VIII.  [*176] 

OF  RESULTING   TRUSTS. 

Having  discussed  the  various  questions  involved  in  the  creation  of 
trusts  by  the  act  of  a  party,  we  shall  next  direct  our  attention  to  the  cre- 
ation of  trusts  by  operation  of  law.  Trusts  of  this  kind  may  be  regarded 
as  twofold,  viz.     1.  Resulting,  2.  Constructive. 

Resulting  Trusts,  the  subject  of  the  present  chapter,  may  be  subdi- 
vided into  the  two  following  classes  :  First,  Where  a  person  being  him- 
self both  legally  and  equitably  entitled  makes  a  conveyance,  devise,  or 
bequest  of  the  legal  estate,  and  there  is  no  ground  for  the  inference  that 
he  meant  to  dispose  of  the  equitable  ;  and.  Secondly,  Where  a  purchaser 
of  property  takes  a  conveyance  of  the  legal  estate  in  the  name  of  a  third 
person,  but  there  is  nothing  to  indicate  an  intention  of  not  appropriat- 
ing to  himself  the  beneficial  interest. 

(d)  Acland  v.  Gaisford,  2  Mad.  28. 

(e)  Ferguson  v.  Tadman,  1  Sim.  530 ;  Foster  v.  Deacon,  3  Mad.  394. 
(/)  Wilson  V.  Clapham,  1  J.  &  W.  39. 

(g)  Paine  v.  Meller,  6  Ves.  349 ;  Harford  v.  Furrier,  1  Mad.  539,  per  Sir  T. 
Plumer  ;  Acland  v.  Gaisford,  2  Mad.  32,  per  eundem  ;  as  to  Stent  v.  Bailis,  2  P. 
W.  220,  see  Paine  v.  Meller,  6  Ves.  352. 

[h)  Minchin  v.  Nance,  4  Beav.  332. 

(«■)  Robertson  v.  Skelton,  12  Beav.  280. 

{k)  See  Harford  v.  Furrier,  1  Mad.  539 ;  Revell  v.  Hussey,  2  B.  &  B.  287  ; 
Paine  v.  Meller,  6  Ves.  352;  Spurrier  v.  Hancock,  4  Ves.  667  ;  White  v.  Nutts,  1 
P.  W.  61. 

{I)  See  Acland  v.  Gaisford,  2  Mad.  32 ;  Wall  v.  Bright,  1  J.  &  W.  494. 

\m)  See  Tasker  v.  Small,  3  M.  &  Cr.  70. 


200  LEW  IN    ON    THE    LAW    OF    TRUSTS,    ETC. 


SECTION  I. 

OF   RESULTING    TRUSTS  WHERE   THERE  IS  A  DISPOSITION  OF  THE   LEGAL 
AND    NOT   OF   THE    EQUITABLE   INTEREST. 

The  general  rule  is,  that  wherever,  upon  a  conveyance,  devise,  or  be- 
quest, it  appears  that  the  grantee,  devisee,  or  legatee  was  intended  to 
take  the  legal  estate  merely,  the  equitable  interest,  or  so  much  of  it  as 
is  left  undisposed  of,  will  result,  if  arising  out  of  the  settlor's  realty, 
to  himself,  or  his  heir,  or,  if  out  of  personal  estate,  to  himself  or  his 
executor. 

Should  the  interest  resulting  as  a  remnant  of  the  real  estate  to  the 
r*l  771  ^^^'^^'  ^^  ^^  ^  chattel  nature,  as  a  term  of  years,  or  a  sum  *of  money, 
L  J  it  will  on  the  death  of  the  Jieir,  devolve  on  his  personal  repre- 
sentative, fa) 

And  if  real  estate  charged  with  debts  be  sold  by  the  court  in  the 
lifetime  of  the  heir,  the  surplus  (as  the  exact  amount  required  could  not 
be  raised)  will,  from  the  time  of  sale,  be  considered  personal  estate,  and 
devolve  on  the  heir's  personal  representative. (i) 

The  intention  of  excluding  the  person  invested  with  the  legal  estate 
from  the  usufructuary  enjoyment,  may  either  he  presumed  by  the  court, 
or  be  actually  exjn-essed  upon  the  instrument. 

Should  an  estate  be  granted  either  without  consideration  or  for  merely 
a  nominal  one,(c)  and  no  trusts  be  declared  of  any  part,  then  if  the  con- 
veyance be  simply  to  a  stranger  "'n  blood,  and  no  intention  appear  of 
conferring  the  heneficiul  interest,  as  the  law  will  not  suppose  a  person  to 
part  with  property  without  some  inducement  thereto,  it  seems  a  trust  of 
the  wlwJe  estate  (as  in  the  analogous  case  of  uses  before  the  statute  of 
Henry)  will  result  to  the  settlor.(rZ) 

If  the  conveyance  be  to  a  wife{e)  or  son{^f)  it  will  be  presumed  an 

(a)  Levet  v.  Needham,  2  Yern.  138 ;  Wych  v.  Packington,  3  B.  P.  C.  44  :  Se- 
well  V.  Denny,  10  Beav.  315  :  Barrett  v.  Buck,  12  Jur.  771.  See  Halford  v.  Stains, 
16  Sim.  288. 

(/;)  Flanagan  v.  Flanagan,  cited  Fletcher  v.  Ashburner,  1  B.  C.  C.  500. 

(c)  See  Hayes  v.  Kingdorae,  1  Vern.  33  ;  Sculthorpe  v.  Burgess,  1  Yes.  jun.  92. 

{d)  Duke  of  Norfolk  v.  Browne,  Pr.  Ch.  80 ;  Warman  v.  Seaman,  2  Freem.  308, 
per  Cur.;  Hayes  v.  Kingdome,  1  Yern.  33  ;  Grey  v.  Grey,  2  Sw.  598,  per  Lord 
Nottingham;  Elliot  v.  Elliot,  2  Ch.  Ca.  232,  per  eundem;  Attorney- General  v. 
"Wilson,  1  Cr.  &  Phil.  1 ;  and  see  Sculthorpe  v.  Burgess,  1  Yes.  jun.  92  ;  Ladv 
Tyrrell's  case,  2  Freem.  304;  Ward  v.  Lant,  Pr.  Ch.  182  ;  but  in  Lloyd  v.  Spillet. 
2  Atk.  150,  and  Young  v.  Peachey,  ib.  257,  Lord  Hardwicke  was  apparently  of 
opmion  that,  since  the  Statute  of  Frauds,  there  are  only  two  cases  of  resulting 
trust,  viz.:  1st,  Where  an  estate  is  purchased  in  the  name  of  a  stranger;  and 
^ndly,  Where  on  a  voluntary  conveyance  a  trust  is  declared  of  part,  in  which  case 
tlie  residue  results.  It  would  seem  to  follow  that,  in  his  opinion,  should  a  volun- 
tary conveyance  be  made  and  no  trust  at  all  be  expressed,  the  grantee  would  take 
tue  beneficial  interest  to  his  own  use  ;  and  see  Hutchins  v.  Lee,  1  Atk.  447. 

W  See  Christ's  Hosp.  v.  Budgin,  2  Yern.  683. 

(/)  Jennings  v.  Sclleck,  1  Yern.  467  ;  Grey  v.  Grey,  2  Sw.  598,  per  Lord  Not- 
tmgbara ;  Elhot  v.  Elliot,  2  Ch.  Ca.  2Z2,  per  eundem  ;  and  see  Haves  v.  Kingdorae, 
i  vern.  33;  Baylis  v.  Newton,  2  Yern.  28;  Cook  v.  Hutchinson,'l  Keen.  42. 


OF    RESULTING    TRUSTS.  201 

advancement,  and  the  wife  or  son  will  be  entitled  *bcncficially.  r^Kj^yg-. 
In  a  case  where  a  son  conveyed  an  estate  to  his  father,  as  purchaser,  L  J 
for  the  sum  of  400/.,  and  then  filed  a  bill  against  the  devisees  of  the 
father  for  a  re-conveyance,  and  it  appeared  from  parol  evidence  which 
was  read  de  bene  esse  that  no  money  was  ever  paid,  and  that  the  intention  of 
the  parties  was,  that  the  son  being  in  bad  credit  the  father  should  be  the 
ostensible  owner  of  the  estate,  in  order  the  more  readily  to  rai^e  money 
on  mortgage,  Sir  J.  Leach  held,  that  since  the  Statute  of  Frauds,  parol 
evidence  was  inadmissible  to  prove  a  trust,  and  that  as  there  was  no  fraud 
or  misapprehension,  but  the  meaning  was  that  the  father  should  exercise 
towards  the  world  at  large  the  beneficial  ownership,  there  was  no  result- 
ing or  constructive  trust,  but  that  the  devisees  must  keep  the  estate. 
The  court,  however,  decreed  the  son  as  vendor  upon  the  face  of  the  deed 
to  have  a  lien  upon  the  property  for  the  400/'.  as  upon  unpaid  purchase- 
money.  (^) 

In  a  similar  case  of  absolute  sale  upon  the  face  of  the  deed,  but  where 
the  grantee  afterwards  admitted  himself  in  writing  to  be  a  trustee,  Lord 
Kenyon  held  that,  the  written  evidence  establishing  facts  inconsistent 
with  the  deed,  further  evidence  by  parol  was  admissible  to  prove  the  truth 
of  the  transaction. (/<) 

Of  course  the  court  will  not  permit  the  grantee  to  retain  the  beneficial 
interest  if  there  was  any  mistake  on  the  part  of  the  granfor,{i)  or  any 
mala  fides  on  the  part  of  the  granfee.(Jv)  But  if  the  grantor  himself 
intended  a  fraud  upon  the  law,  the  assurance,  if  the  defendant  demurs, 
will  be  made  absolute  against  the  grantor  ■,[!)  however,  if  the  defendant 
admit  the  trust,  it  seems  the  court  will  relieve. («i)  It  was  said  in  one 
case  that  if  a  man  transfer  stock  or  deliver  money  to  another,  r^Ki-rg-i 
*it  must  proceed  from  an  intention  to  benefit  that  other  person,  L  J 
and  therefore,  although  he  be  a  stranger,  it  shallbe^^rmia  _/«c/(?agift,(?i) 
but  if  such  an  intention  cannot  be  inferred  consistently  with  the  attend- 
ant circumstances,  a  trust  will  result,  (o) 

If  upon  a  conveyance, (p)  devise,(2)  or  bequest,(r)  a  trust  be  declared 

{g)  Leman  v,  Whitley,  4  Riiss.  423.  {h)  Cripps  v.  Jee,  4  B.  C.  C.  472. 

[i)  Birch  v.  Blagrove,  Amb.  264  ;  Anon,  cited  Woodman  v.  Morrel,  2  Freem.  33  ; 
and  see  Attorney-General  v.  Boulden,  8  Sim.  472. 

{k)  Lloyd  V.  Spillet,  2  Atk.  150  ;  S.  C.  Barn.  388,  per  Lord  Hardwicke  ;  Hutch- 
ins  V.  Lee,  1  Atk.  448,  per  eundem ;  Young  v.  Peachy,  2  Atk.  254;  Wilkinson  v. 
Brayfield,  cited  ih.  257 ;  S.  C.  reported  2  Vern.  307. 

(l)  Cottington  v.  Fletcher,  2  Atk.  15(3,  per  Lord  Hardwicke;  and  see  Chaplin 
V.  Chaplin,  3  P.  W.  233  ;  Muckleston  v.  Brown,  6  Yes.  68. 

{m)  See  Cottington  v.' Fletcher,  Muckleston  v.  Brown,  ubi  supra. 

(n)  George  v.  Howard,  7  Price,  651-653. 

(o)  See  Custance  v.  Cunningham,  13  Beav.  363. 

(p)  Cottington  v.  Fletcher,  2  Atk.  155;  Culpepper  v.  Aston,  2  Ch.  Ca.  115; 
Cook  V.  Gwavas,  cited  Roper  v.  RadclifFe,  9  Mod.  187;  Lloyd  v.  Spillet,  2  Atk. 
150;  S.  C.  Barn.  388,  per  Lord  Hardwicke. 

{q)  Sherrard  v.  Lord  Harborough,  Amb.  165  ;  Marquis  of  Townshend  v.  Bishop 
of  Norwich,  cited  Saunders  on  Uses,  C.  3,  s.  7,  div.  3  ;  Hobart  v.  Countess  of 
Sufifolk,  2  Yern.  644  ;  Nash  v.  Smith,  17  Yes.  29;  Wych  v.  Packington,  cited  Roper 
V.  Radcliffe,  9  Mod.  187  ;  Davidson  v.  Foley,  2  B.  C.  C.  203  ;  Kiricke  v.  Bransbey, 
2  Eq.  Ca.  Ab.  508 ;  Levet  v.  Needham,  2  Yern.  138 ;  Halliday  v.  Hudson,  3  Yes. 
210  ;  Killet  v.  Killet,  3  Dow.  248;  &c. 

(?•)  Robinson  v.  Taylor,  2  B.  C.  C.  589 ;  Mapp  v.  Elcock,  2  Phill.  793  ;  affirmed 
on  appeal.  3  H.  of  L.  Ca.  492  :  and  sec  Dfiwson  v.  Clarke,  18  Yes.  254. 


202  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

of  part  of  the  estate,  and  nothing  is  said  as  to  the  residue,  then,  dearly. 
the  creation  of  the  partial  trust  is  regarded  as  the  sole  object  in  view,  and 
the  equitable  interest  undisposed  of  by  the  settlor  results  to  him  or  his 
representative. 

But  upon  this  subject  a  distinction  must  be  observed  between  a  devise 
to  a  person  for  a  particular  purpose  with  no  intention  of  conferring  the 
beneficial  interest,  and  a  devise  with  the  view  of  conferring  the  beneficial 
interest,  but  subject  to  a  particular  injunction.  Thus,  if  lands  be  devised 
to  A.  and  his  heirs  iipon  trust  to  pay  debts,  this  is  simply  the  creation  of 
a  trust,  and  the  residue  will  result  to  the  heir ;  but  if  the  devise  be  to 
A.  and  his  heirs,  charged  with  debts,  the  intention  of  the  testator  is  to 
devise  beneficially  subject  to  the  charge,  and  then  whatever  remains, 
after  the  charge  has  been  satisfied,  will  belong  to  the  devisee. (s) 

No  positive  rule  can  be  laid  down  to  determine  in  what  cases  the  devise 

will  carry  with  it  a  beneficial  character,  and  in  what  it  will  be  construed 

a  trust ;  but  on  all  occasions  the  court,  refusing  to  be  governed  by  the 

„-^  mere  technical  ^phraseology,  extracts  the  probable  intention  of 

L        -I  the  settlor  from  the  general  scope  of  the  instrument. (A 

The  recognition  of  the  relationshijy  of  the  parties  has  often  materially 
influenced  the  court  against  the  construction  of  a  mere  trust.(^f)  Thus, 
where  a  testator  gave  5?.  to  his  brother,  who  was  his  heir-at-law,  and 
<'  made  and  constituted  his  dearly  beloved  xoife  his  sole  heiress  and  exe- 
cutrix, to  sell  and  dispose  thereof  at  her  pleasure,  and  to  pay  his  debts 
and  legacies ;"  Lord  King  said,  the  devise  that  the  wife  should  be  sole 
heiress  of  the  real  estate  did,  in  every  respect,  place  her  in  the  stead  of 
the  heir,  and  not  as  a  trustee  for  him  ;  that  it  was  plainer  by  reason  of 
the  language  of  tenderness  and  afi"ection,  "  his  dearly  beloved  wife," 
which  must  intend  to  her  something  beneficial,  and  not  what  would  be  a 
trouble  only;  and  what  made  it  still  stronger  was,  that  the  heir  was  not 
forgot,  but  had  a  legacy  of  bl.  left  him ;  and  so  his  lordship  decreed  the 
devisee  to  be  beneficially  entitled. (t)  But  any  allusion  of  this  kind  is 
merely  one  circumstance  of  evidence,  and  therefore  to  be  counteracted  by 
the  language  of  other  parts  of  the  instrument.(n') 

Although  the  introduction  of  the  words  "upon  trust"  may  be  strong 
evidence  of  the  intention  not  to  confer  on  the  devisee  a  beneficial  inte- 
rest,(a?)  yet  that  construction  may  be  negatived  by  the  context,  or  the 
general  scope  of  the  instrument  3(3/)  and,  in  like  manner,  the  devisee  may 

(s)  King  V.  Denison,  1  V.  &  B.  272,  per  Lord  Eldon. 

{t)  Hill  V.  Bishop  of  London,  1  Atk.  620,  per  Lord  Hardwicke ;  Walton  v.  Wal- 
ton, 14  Ves.  322,  per  Sir  W.  Grant ;  Starkey  v.  Brooks,  1  P.  W.  391,  per  Lord 
Cowper;  King  v.  Denison,  1  V.  &  B.  279,  per  Lord  Eldon. 

Cm)  Lloyd  v.  Spillet,  cited  Cook  v.  Duckenfield,  2  Atk.  566 ;  Lloyd  v.  Went- 
wortb,  cited  Robinson  v.  Taylor,  2  B.  C.  C.  59-4  ;  Smith  v.  King,  16  East,  283  ; 
Coningham  v.  Hellish,  Pr.  Ch.  31  ;  Cook  v.  Hutchinson,  1  Keen,  42. 

(v)  Rogers  v.  Rogers,  3  P.  W.  193. 

[w)  Buggins  V.  Yates,  9  Mod.  122  ;  Wych  v.  Packington,  2  Eq.  Ca.  Ab.  507  : 
and  see  King  v.  Denison,  1  V.  &  B.  274. 

{x)  See  Hill  v.  Bishop  of  London,  1  Atk.  620  ;  Woollett  v.  Harris,  5  Mad.  452. 

(y)  Dawson  v.  Clarke,  15  Ves.  409;  S.  C.  18  Ves.  247,  see  257  ;  Coningham  v. 
496  ^^'  ^^  '  ^^^'^  ^'  ^^^^'^^^^o^'  1  ^een,  42  ;  Hughes  v.  Evans,  13  Sim. 


OF    RESULTING    TRUSTS.  203 

be  designated  as  "  trustee  j"  but  if  tbe  term  be  used  with  reference  to 
one  only  of  two  funds,  he  may  still  establish  his  title  to  the  beneficial 
interest  in  the  other.(z) 

*It  must  also  be  observed,  that,  as  the  heir  is  a  person  favoured  r*-|  o-i-i 
in  law,  he  will  not  be  excluded  from  the  resulting  trust  on  bare  L  J 
conjecture  ;(«)  and  there  must  be  positive  evidence  of  a  benefit  intended 
to  the  devisee,  and  not  merely  negative  evidence  that  no  benefit  was 
intended  to  the  heir ;  for  the  trust  results  to  the  real  representative,  not 
on  the  ground  of  intention,  but  because  the  ancestor  has  declared  no 
intention. (i)  Thus,  a  legacy  to  the  heir  will  not  prevent  a  trust  from 
resulting  ;(c)  but,  joined  to  other  circumstances  in  favour  of  the  devisee, 
it  will  not  be  without  its  eSect.(d'j 

It  need  scarcely  be  remarked,  that,  as  the  species  of  trust  we  are  now 
considering  results  hy  presu7nption  of  law,  it  may  be  rebutted  by  positive 
evidence  by  parol,  that  the  testator's  intention  was  to  confer  the  surplus 
interest  beneficially. (e) 

Next,  a  trust  results  by  operation  of  law,  where  the  intention  not  to 
benefit  the  grantee,  devisee,  or  legatee,  is  expressed  upon  the  instrument 
itself,  as  if  the  conveyance,  devise,  or  bequest,  be  to  a  person  «<  upon 
trust,"  and  no  trust  is  declared,(/)  or  upon  certain  trusts  that  are  too 
vague  to  be  executed,((/)  or  *upon  trusts  to  be  thereafter  declared,  j-^-.  09-1 
and  no  declaration  ever  made,(/i)  or  upon  trusts  that  are  void  for  L  "'J 
unlawfulness,(A  or  that  fail  by  lapse,(^)  &c. ;  for  in  such  cases  the  trustee 

(z)  Batteley  v.  Windle,  2  B.  C.  C.  31 ;  Pratt  v.  Sladden,  14  Yes.  193  ;  and  see 
Gibbs  V.  Rumsey,  2  V.  &  B.  294. 

(a)  Halliday  v.  Hudson,  3  Ves.  211,  per  Lord  Loiighborovigh  ;  and  see  Kellett 
V.  Kellett,  3  Dow.  248  ;  Amphlett  v.  Parke,  2  R.  &  M.  227  ;  Phillips  v.  Phillips,  1 
M.  &  K.  661  ;  Salter  v.  Cavanagh,  1  Dru.  &  Walsh,  668. 

(6)  See  Hopkins  v.  Hopkins,  Gas.  t.  Talb.  44  ;  Tregonwell  v.  Sydenham,  3  Dow. 
211  ;  Lloyd  v.  Spillet,  2  Atk.  151 ;  Habergham  v.  Vincent,  2  Ves.  jun.  225. 

(c)  Randall  v.  Bookey,  2  Vern.  425  ;  S.  C.  Pr.  Ch.  162  ;  Hopkins  v.  Hopkins, 
Cas.  t.  Talb.  44;  Starkey  v.  Brooks,  1  P.  W.  390,  overruling  North  v.  Crompton, 

1  Ch.  Ca.  196 ;  Salter  v.  Cavanagh,  1  Dru.  &  Walsh,  668. 

{d)  Rogers  v.  Rogers,  3  P.  W.  193  ;  S.  C.  Sel.  Ch.  Ca.  81 ;  and  see  Docksey  v. 
Docksey,  2  Eq.  Ca.  Ab.  506 ;  King  v.  Denison,  1  V.  &  B.  274  ;  Amphlett  v   Parke, 

2  R.  &  M.  230 ;  Mallabar  v.  Mallabar,  Cas.  t.  Talb.  78. 

(e)  Crompton  v.  North,  as  cited  in  Gainsborough  v.  Gainsborough,  2  Vern.  253  ; 
Docksey  v.  Docksey,  2  Eq.  Ca.  Ab.  506  ;  Mallabar  v.  Mallabar,  Cas.  t.  Talb.  78  ; 
Cook  v.  Hutchinson,  1  Keen,  50,  per  Lord  Langdale. 

(/■)  Dawson  v.  Clarke,  18  Yes.  254,  per  Lord  Eldon  ;  see  Southouse  v.  Bate, 
2  V.  &  B.  396;  Morice  v.  Bishop  of  Durham,  10  Yes.  537  ;  Woollett  v.  Harris,  5 
Mad.  452  ;  Pratt  v.  Sladden,  14  Ves.  198  ;  Dunnage  v.  White,  1  Jac.  &  Walk.  583 ; 
Goodere  v.  Lloyd,  3  Sim.  538  ;  Anon,  case,  1  Com.  345  ;  Penfold  v.  Bouch,  4 
Hare,  271. 

{g)  Fowler  v.  Garlike,  1  R.  &  M.  232  ;  Morice  v.  Bishop  of  Durham,  9  Yes.  399; 
S.  C.  10  Ves.  522  ;  Stubbs  v.  Sargon,  2  Keen,  255  ;  S.  C.  3  M.  &  C.  507;  Kendall 
V.  Granger,  5  Beav.  300  ;  Leslie  v.  Devonshire,  2  B.  C.  C.  187  ;  Yezey  v.  Jamson, 

1  Sim.  &  Stu.  69 ;  and  see  Ellis  v.  Selby,  7  Sim.  352  ;   S.  C.  1  M.  &  C.  286  ;  Wil- 
liams V.  Kershaw,  5  CI.  &  Fin.  111. 

{h)  Emblyn  v.  Freeman,  Pr.  Ch.  541;  City  of  London  v.  Garway,  2  Vern.  571; 
Collins  V.  Wakeman,  2  Ves.  jun.  683;  Fitch  v.  Weber,  6  Hare,  145;  and  see 
Brown  v.  Jones,  1  Atk.  188  ;  Sidney  v.  Shelley,  19  Ves.  352  ;  Brookman  v.  Hales, 

2  V.  &  B.  45. 

(j)  Carrick  v.  Errington,  2  P.  W.  361 ;  Arnold  v.  Chapman,  1  Yes.  108  ;  Tre- 
gonwell T.  Sydenham,  3  Dow.  194;  Jones  v.  Mitchell,  1  S.  &  S.  290  ;  Gibbs  v. 
{k)  For  note  [k),  see  next  page. 


204 


LEAVIX    ON    THE    LAW    OF    TRUSTS,    ETC. 


can  have  no  pretence  for  claiming  the  beneficial  ownership,  when,  by  the 
express  language  of  the  instrument,  the  whole  property  has  been  impressed 
with  a  trust. 

And  where,  as  in  these  cases,  a  trust  results  to  the  settlor  or  his  repre- 
sentative, not  by  presumption  of  law,  but  by  force  of  the  written  instru- 
ment, the  trustee  is  not  at  liberty  to  defeat  the  resulting  trust  by  the 
production  of  extrinsic  evidence  by  parol. 0 

Having  distinguished  between  the  two  kinds  of  resulting  trusts  (a 
classification  necessary  to  be  made  for  the  purpose  of  ascertaining  the 
admissibility  of  parol  evidence,)  we  proceed  to  introduce  a  few  remarks 
applicable  to  resulting  trusts  generally,  whether  arising  by  presumption 
of  law  or  from  the  language  of  the  instrument. 

First,  If  real  estate  be  devised  upon  trust  to  sell  for  a  particular  pur- 
pose,  and  that  purpose  either  wholly  fail  or  do  not  *exhaust  the 
L  J  proceeds,  the  part  that  remains  unapplied,  whether  the  estate  has 
been  actually  sold  or  not,  will  result  to  the  testator's  heir,  and  not  to  his 
next  of  kin. Cm)  And  the  whole  or  surplus  will  result  in  this  manner, 
though  the  proceeds  of  the  realty  be  blended  with  personal  estate  in  the 
formation  of  one  common  fund.(»)  And  even  an  express  declaration 
that  the  proceeds  of  the  sale  shall  be  considered  as  part  of  the  testator's 
personal  catate  will  not  prevent  the  operation  of  the  rule  ;(o)  for  a  direc- 

Rumsey,  2  V.  &  B.  294;  Page  v.  Leapingwcll,  18  Ves.  463;  Pilkington  v.  Boughey, 
12  Sim.  114;  and  see  Cooke  v.  The  Stationers'  Company,  3  M.  &  K.  2G2.  If  an 
estate  was  devised  to  A.  and  bis  heirs,  in  trust  to  sell  and  pay  part  of  the  pro- 
ceeds to  persons  capable  of  taking,  and  other  part  to  a  charity,  the  statute  of 
mortmain  did  not  avoid  the  whole  legal  devise,  but  aflfects  only  the  interest  given 
to  the  charity;  Young  v.  Grove,  4  Com.  B.  Re.  6G8  ;  Doe  v.  Harris,  16  Mees.  & 
W.  517. 

{k)  Ackyrod  v.  Smithson,  1  B.  C.  C.  503  ;  Spink  v.  Lewis,  3  B.  C.  C.  355;  Wil- 
liams V.  Coade,  10  Ves.  500  ;  Digby  v.  Legard,  cited  Cruse  v.  Barley,  3  Cox's  P.W. 
22,  note  (1);  Hutcheson  v.  Hanimond,  3  B.  C.  C.  128  ;  Davenport  v.  Coltman,  12 
Sim.  610  ;  Muckleston  v.  Brown,  6  Ves.  63. 

{I)  See  Langham  v.  Sanford,  IT  Yes.  442;  S.  C.  19  Ves.  643;  Rachfield  v. 
Careless,  2  P.  W.  158  ;  Gladding  v.  Yapp,  5  Mad.  59  ;  White  v.  Evans,  4  Ves.  21  ; 
Walton  V.  Walton,  14  Ves.  322. 

{m)  Starkey  v.  Brooks,  1  P.  W.  390;  Randall  v.  Bookey,  Pr.  Ch.  162  ;  Stone- 
house  V.  Evelyn,  3  P.  W.  252  ;  Robinson  v.  Taylor,  2  B.  C.  C.  589  ;  Cruse  v.  Bar- 
ley, 3  P.  W.  20 ;  Buggins  v.  Yates,  2  Eq.  Ca.  Ab.  508  ;  Hill  v.  Cock,  1  V.  &  B. 
173  ;  City  of  London  v.  Garway,  2  Vern.  571 ;  Nicholls  v.  Crisp,  cited  Croft  v. 
Slee,  4  Ves.  65;  Digby  v.  Legard,  2  Dick.  500  ;  Spink  v.  Lewis,  3  B.  C.  C.  355; 
Chitty  V.  Parker,  4  B.  C.  C.  411 ;  Collins  v.  Wakeman,  2  Ves.  jun.  683  ;  Howse  v. 
Chapman,  4  Ves.  542  ;  Williams  v.  Coade,  10  Ves.  500  ;  Berry  v.  Usher,  11  Ves. 
87  ;  Gibbs  v.  Rumsey,  2  V.  &  B.  294 ;  Maugham  v.  Mason,  1  V.  &  B.  410  ;  Wilson 
v.  Major,  11  Ves.  205  ;  Wright  v.  Wright,  16  Ves.  188  ;  Hooper  v.  Goodwin,  18 
Ves.  156;  Jones  v.  Mitchell,  1  S.  &  S.  290;  Page  v.  Leapingwell,  18  Ves.  463; 
Gibbs  V.  Ougier,  12  Ves.  416;  M'Cleland  v.  Shaw,  2  Sch.  &  Lef.  545;  Mogg  v. 
Hodges,  2  Ves.  52  ;  Eyre  v.  Marsden,  2  Keen,  564 ;  Ex  parte  Pring,  4  Y.  &  C.  507  ; 
Watson  v.  Hayes,  5  M.  &  Cr.  125  ;  Davenport  v.  Coltman,  12  Sim.  610  ;  Bunnett 
V.  Foster,  7  Beav.  540 ;  Marriott  v.  Turner,  20  Beav.  557,  &c.  Note,  Countess  of 
Bristol  V.  Hungerford,  2  Vern.  645,  is  misreported— see  Rogers  v.  Rogers,  3  P.W. 
194,  note  (C). 

(n)  Ackroyd  v.  Smithson,  1  B.  C.  C.  503;  Jessopp  v.  Watson,  1  M.  &  K.  665; 
bait  V.  Chattaway,  3  Beav.  576. 

\r  ^^) -^°^)'"s  V.  Wakeman,  2  Ves.  jun.  683;  and  see  Amphlett  v.  Parke,  2  R.  & 
.M.  226.  Ogle  v.  Cook,  cited  in  Fletcher  v.  Ashburner,  1  B.  C.  C.  502,  and  in 
Ackroyd  v.  Smithson,  id.  513,  was  for  a  long  time  considered  contra  ;  but  in  Col- 


OF    RESULTING    TRUSTS.  205 

tion  of  this  kind  is  construed  to  extend  to  the  purposes  of  the  will  only, 
and  not  to  give  a  right  to  those  who  claim,  as  the  next  of  kin,  by  opera- 
tion of  law.  In  the  case  of  Phillips  v.  Phillips(p)  before  Sir  J  Leach, 
the  proceeds  of  the  sale  were  directed  to  be  taken  as  part  of  the  testa- 
tor's personal  estate,  and  were  blended  into  one  fund  with  the  personalty, 
and  a  legacy  which  had  lapsed  was  decreed  in  favour  of  the  next  of  kin  : 
but  the  opinion  of  the  profession  was  always  against  the  decision ;  and  it 
is  observable,  that  Collins  v.  Wakeman,(5)  the  only  authority  precisely 
in  point,  was  not  once  adverted  to  in  *this  case,  either  by  the  r*]^g4-i 
bar  or  the  bench.  The  case  has  repeatedly  received  the  express  L  -1 
disapprobation  of  the  court,(/')  and  has  at  length  been  overruled. (s) 

If  a  testator  direct  the  proceeds  of  the  sale  to  be  taken  as  personal 
estate,  and  nothing  more  is  said,  then,  as  every  part  of  the  will  ought, 
if  possible,  to  have  an  operation,  the  meaning  of  the  testator  might  be 
thought  to  be,  that  the  realty  should  be  converted  into  personalty  for 
the  benefit  of  the  next  of  kin ;  and  in  The  ( -ountess  of  Bristol  v. 
Hungerford,(^)  where  the  testator  directed  the  proceeds  of  the  sale  to  be 
taken  as  personal  estate,  and  go  to  his  executors,  to  whom  he  gave  20/. 
a  piece,  it  is  said  the  next  of  kin  were  declared  entitled.  It  appears, 
however,  that  the  two  next  of  kin  were  also  the  co-heirs,  and  therefore 
as  utraque  via  data  the  same  persons  would  claim,  it  was  obviously 
unnecessary  to  determine  the  question. 

It  has  been  decided  in  a  late  case  that  even  if  the  testator  say 
"  nothing  shall  result  to  the  heir-at-law,"  yet  a  bequest  to  the  next  of 
kin  is  not  sufficiently  implied,  but  the  heir-at-law  will  take  in  spite  of 
the  intention  to  the  contrary. («) 

If  the  execution  of  the  trust  require  the  estate  to  be  sold,  but  the  pur- 
poses of  the  trust  do  not  exhaust  the  proceeds,  the  part  that  is  undis- 
posed of  will  result  to  the  heir  in  the  character  of  personalty,  and,  though 
the  sale  was  not  actually  effected  in  his  lifetime,  will  devolve  on  his 
executor  :(^v)  but  if  the  trusts  declared  by  the  testator  do  so  entirely  fail 
as  not  to  call  for  a  conversion,  then  the  whole  estate  will  result  to 
the  heir  as  realty,  and  descend  upon  his  heir,(?i')  though  the  estate  may 
by  the  mistake  of  the  trustees  have  been  actually  sold. (.7) 

The  doctrines  upon  this  subject  have  been  very  clearly  stated  r*;^g5-i 
*by  Sir  John  Leach  in  the  case  of  Smith  v.  Claxton.(j/)     A  tes-  L         J 

lins  V.  Wakeman,  2  Ves.  jun.  G86,  Lord  Loughborough  had  the  Reg.  Lib.  searched, 
and  it  was  found  the  point  had  been  left  undecided. 

(p)   1  M.  &  K.  649.  (?)   2  Ves.  jun.  683. 

(r)  See  Fitch  v.  Weber,  6  Hare,  145  ;  Shallcross  v.  Wright,  12  Beav.  505  ;  Flint 
V.  Warren,  16  Sim.  124.    ' 

(s)  Taylor  v.  Taylor,  3  De  G.  Mac.  &  Gord.  190. 

(?)  Pr.'  Ch.  81  ;  S.  C.  2  Vern.  645 ;  corrected  from  Reg.  Lib.,  in  Rogers  v.  Ro- 
gers, 3  P.  W.  194,  note  (C)  ;  and  see  Sir  W.  Basset's  case,  cited  Bayley  v.  Powell. 
2  Vern.  361. 

(m)  Fitch  V.  Weber,  6  Hare,  145,  and  compare  Johnson  v.  Johnson,  4  Beav.  318. 

(i.)  Hewitt  V.  Wright,  1  B.  C.  C.  86  ;  Wright  v.  Wright,  16  Ves.  188 ;  Smith  v. 
Claxton,  4  Mad.  484 ;  Dixon  v.  Dawson,  2  S.  &  St.  327  ;  Jessopp  v.  Watson,  1  M. 
&  K.  665 ;  Hatfield  v.  Pryme,  2  Coll.  204. 

(w)  Smith  V.  Claxton,  ubi  supra;  Chitty  v.  Parker,  2  Ves.  jun.  271. 

(z)  Davenport  V.  Coltman,  12  Sim.  610. 

(y)  4  Mad.  484. 

February,  1858. — 14 


206 


LEWIN  ON  THE  LAW  OF  TKUSTS,  ETC. 


tator  by  one  devise  had  given  an  estate  to  trustees  and  their  heirs  upon 
trust  to  sell,  and  out  of  the  proceeds  to  pay  his  funeral  expenses,  debts, 
and  leo'acies  and  subject  thereto,  upon  trust  to  pay  the  surplus  to  his  wife. 
By  a  second  devise  "he  had  given  an  estate  to  the  same  trustees  and  their 
heirs,  upon  trust  to  pay  the  rents  to  his  wife  for  life,  and  after  her  death 
to  Thomas  for  life,  and  after  his  death  upon  trust  to  sell  and  divide  the 
proceeds  amongst  the  children  of  Thomas,  and,  failing  such  children, 
between  Joseph  and  Robert  in  equal  shares.  By  a  third  devise  he  had 
^nven  an  estate  to  the  same  trustees  and  their  heirs,  upon  trust,  subject 
to  an  annuity,  for  Robert  for  life,  and  after  his  decease  upon  trust  to 
sell  and  apply  the  produce  for  the  benefit  of  the  children  of  Robert,  and, 
failino-  such  children,  upon  trust  for  Thomas  and  Joseph  in  equal  shares. 
The  wife  died  in  the  lifetime  of  the  testator ;  Robert  also  died  in  the 
lifetime  of  the  testator  without  issue;  Thomas  survived  the  testator,  but 
died  a  few  months  after,  having  had  an  only  child,  who  had  died  in  the 
testator's  lifetime.  Sir  John  Leach  said — "  Where  a  devisor  directs  his 
real  estate  to  be  sold,  and  the  produce  to  be  applied  to  particular  purposes 
and  those  purposes  partially  fail,  the  heir-at-law  is  entitled  to  that  part 
of  the  produce  which  in  the  events  is  thus  undisposed  of.  The  heir-at-law 
is  entitled  to  it  because  the  real  estate  was  land  at  the  devisor's  death,  and 
this  part  of  the  produce  is  an  interest  in  that  land  not  effectually  devised, 
and  which  therefore  descends  to  the  heir.  A  devisor  may  give  to  his 
devisee  either  land  or  the  price  of  land  at  his  pleasure,  and  the  devisee 
must  receive  it  in  the  quality  in  which  it  is  given,  and  cannot  intercept 
the  purpose  of  the  devisor.  If  it  be  the  purpose  of  the  testator  to  give 
land  to  the  devisee,  the  land  will  descend  to  his  heir ;  if  it  be  the  pur- 
pose of  the  devisor  to  give  the  price  of  land  to  the  devisee,  it  will,  like 
other  money,  be  part  of  his  personal  estate.  Under  every  will,  when 
the  question  is,  whether  the  devisee,  or  the  heir  failing  the  devisee, 
takes  an  interest  in  land  as  land  or  money,  the  true  inquiry  is,  whether 
r*1  sn  *^®  devisor  has  expressed  a  purpose,  that,  in  the  events  *which 
L  J  have  happened,  the  land  shall  be  converted  into  money.  Where 
a  devisor  directs  his  land  to  be  sold  and  the  produce  divided  between  A. 
and  B.,  the  obvious  purpose  of  the  testator  is,  that  there  shall  be  a  sale 
for  the  convenience  of  division,  and  A.  and  B.  take  their  several 
interests  as  money,  and  not  land ;  and  if  A.  die  in  the  lifetime  of  the 
testator,  and  the  heir  stands  in  his  place,  the  purpose  of  the  devisor  still 
applies  to  the  case,  and  the  heir  shall  take  the  share  of  A.,  as  A.  him- 
self would  have  taken  it,  as  money,  and  not  land  :  but  if  A.  and  B.  loth 
die  in  the  lifetime  of  the  testator,  and  the  wlioh  interest  in  the  land 
descends  to  the  heir,  the  question  would  then  be,  whether  the  devisor 
can  be  considered  as  having  expressed  any  purpose  of  sale  applicable  to 
that  event,  so  as  to  give  the  interest  of  the  heir  the  quality  of  money. 
The  obvious  purpose  of  the  testator  being  that  there  should  be  a  sale  for 
the  convenience  of  division  between  his  devisees,  that  purpose  could 
have  no  application  to  a  case  in  which  the  devise  wholly  failed,  and  the 
heir  would  therefore  take  the  whole  interest  as  land.  To  apply  these 
principles  to  the  present  case  :  under  the  first  devise,  the  estate  is 
directed  to  be  sold,  and  the  produce  applied  in  aid  of  the  personal  estate 


OF    RESULTING    TRUSTS.  207 

ia  payment  of  debts  and  legacies,  and  the  surplus  is  given  to  the  wife. 
The  debts  and  legacies  are  fully  paid  out  of  the  personal  estate,  and  the 
wife,  dies  iu  th6  testator's  lifetime.  The  whole  interest  thus  resulted  to 
the  heir,  and  the  devisor's  purpose  of  sale,  being  plainly  for  a  distribu- 
tion according  to  the  will,  has  no  application  to  the  events  which  have 
happened,  and  the  heir  took  the  estate  as  land,  which  descends  in  that 
character  to  his  heir.  Under  the  second  devise,  there  is  an  obvious 
purpose  of  sale  for  the  convenience  of  division  between  the  sons  of 
Thomas,  or,  failing  them,  between  Joseph  and  Kobert.  The  only  sou 
of  Thomas,  and  the  devisor's  son  Robert,  both  die  in  the  devisor's  life- 
time, and  the  heir  becomes  entitled  by  lapse  to  the  moiety  of  the  pro- 
duce intended  for  Robert.  The  purpose  of  sale  for  convenience  of  divi- 
sion still  applies  to  the  events  which  have  happened,  and  this  moiety  is 
not  land,  but  personal  estate  of  the  heir.  Under  the  third  devise,  there 
is  the  same  obvious  purpose  of  sale  :  first,  for  a  division  between  the 
children  of  Robert,  and,  failing  them,  between  the  heir  and  Joseph. 
There  *were  no  children  of  Robert,  but  the  purpose  of  sale  re-  r*i  07-) 
mains,  and  this  moiety  also  is  not  land,  but  personal  estate  of  L  -• 
the  heir." 

Secondly.  If  a  testator  bequeath  money  to  be  laid  out  in  a  purchase  of 
land,  to  be  settled  to  uses  which  either  wholly  or  partially  fail  to  take 
effect,  the  undisposed  of  interest  in  the  money,  or  estate  if  purchased, 
will  result  to  the  testator's  executor,  upon  trust  for  his  next  of  kin. 

Should  the  heir  advance  a  claim,  it  must  be  either  in  his  character  of 
Jieir  or  as  ptirchaser.  It  cannot  for  a  moment  be  contended,  that  he  can 
establish  a  claim  in  the  character  of  heir,  for,  to  assert  such  a  title,  he 
must  prove  himself  to  be  the  heir  of  the  person  last  seised,  and  here  by 
the  terms  of  the  question  the  testator  had  no  seisin. (s)  <^The  conver- 
sion of  the  estate,"  said  Lord  Northington,  <'is  to  be  after  the  testator's 
death,  and  whoever  takes  under  the  settlement  directed  to  be  made  will 
take  a  new-created  interest,  which  never  did,  and  never  was  intended  to 
vest  in  the  testator,  and  therefore  he  cannot  take  but  as  purchaser. "(a) 
But  if  the  heir  is  to  claim  as  purchaser,  he  must  show  that  the  will  con- 
tains a  bequest  to  him  either  expressly  or  hy  implication.  Now,  he  can- 
not maintain  that  any  express  gift  was  made  in  his  favour,  for  the  sup- 
position is,  that  the  testator  has  declared  no  intention ;  nor  is  it  easy  to 
discover  upon  what  ground  any  implied  gift  can  be  supported,  for,  if  im- 
plied at  all,  it  must  be  so  from  something  said  in  the  will  ]  but  if  a  tes- 
tator merely  direct  1000^.  to  be  laid  out  in  lauds,  to  be  settled  on  A.  for 
life,  the  injunction  plainly  involves  nothing  more  than  what  is  actually 
expressed.  To  take  the  converse  of  this  case,  should  a  testator  devise 
real  estate  to  be  sold,  and  direct  the  interest  of  the  proceeds  to  be  paid 
to  A.,  for  life,  it  is  undoubted  law,  that  the  remainder  of  the  stock  would 
result  to  the  heir,  and  is  not  by  implication  a  bequest  to  the  executor.(t) 
It  may  be  said,  that  a  testator  is  supposed  so  to  favour  the  heir,  that, 

(z)  Under  the  late  Inheritance  Act,  3  &  4  W.  IV.  c.  106,  the  title  is  to  be  de- 
duced from  the  '-purchaser,''  but  the  argument  in  the  text  is  equally  applicable, 
(a)  Robinson  v.  Knight.  2  Ed.  159.  {b)  Wilson  v.  Major,  II  Yes.  205. 


208 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


where  money  is  to  be  *turned  into  land,  a  devise  to  the  heir  shall 
[*188J  ^^  presumed.  But  whore  is  the  maxim  to  be  found,  that  a  tes- 
tator shall  be  taken  to  favour  his  heir  more  than  his  executor  ?  That 
the  law  favours  the  heir  is  readily  conceded,  but  it  is  only  in  the  char- 
acter of  Tieir;  that  is,  the  law,  which  invests  the  heir  with  the  title  by 
which  he  claims  the  land,  will  support  him  in  the  maintenance  of  that 
title,  until  it  appears  he  has  been  disinherited,  either  expressly,  or  by 
necessary  implication.  It  was  never  contended  that  favour  was  to  be 
shown  to  him  in  the  character  of  aj^urchaser.  As  the  trust  is  executory, 
and  therefore  admits  a  greater  latitude  of  construction,  it  maybe  thought, 
perhaps,  that  the  court  would  insert  a  limitation  to  the  heir,  on  the 
ffround,  that  had  the  question  been  put  to  the  testator  himself,  he  would 
have  o-iven  a  direction  to  that  effect ;  but  as  the  heir,  except  as  to  lands 
of  which  the  ancestor  was  seised,  is  regarded  in  the  light  of  a  stranger, 
there  seems  no  more  reason  why  the  court  should  insert  a  limitation  to 
the  heir,  than  to  any  indifferent  person.  Besides,  the  argument  would 
have  no  application  to  such  cases  as  that  of  Leslie  v.  The  Duke  of  Devon- 
shire,(c)  where  the  uses  of  the  remainder,  though  void,  were  actually 
expressed.  But  though  the  right  of  the  heir  may  not  appear  to  rest  on 
any  reasonable  foundation,  it  may  still  be  thought  incongruous  that  land 
should  go  to  the  executor.  However,  this  difficulty  will,  on  examination, 
be  found  totally  destitute  of  weight.  The  respective  rights  of  the  heir 
and  executor  are  absolutely  and  immutably  fixed  at  the  moment  of 
the  intestate's  decease  :  except  so  far  as  a  person  may  have  disposed  of 
his  property  by  will,  what  was  then  real  estate  will  descend  upon  the  heir, 
and  what  was  then  personal  estate  will  devolve  on  the  executor.  The 
estate  may,  in  the  execution  of  some  partial  purpose  expressed  upon  the 
will,  have  been  converted  into  money,  or  a  part  of  the  personal  estate 
may,  with  the  same  view,  have  been  converted  into  realty ;  but,  in  either 
case,  the  undisposed  of  interest  will,  notwithstanding  the  conversion, 
result  to  that  representative  from  whom  in  fact  it  was  never  aliened. 
If  a  testator  direct  the  sale  of  an  estate,  and  give  one-third  of  the  proceeds 
to  A.,  and  another  to  B.,  the  remaining  third  is,  even  after  the  actual 
r=*=lSQT  *^^^^'  ^  portion  of  the  land  of  which  the  ancestor  was  seised,  and 
L  -I  will  therefore  result  to  the  heir ;  and,  on  the  same  principle,  if 
1000?.  be  bequeathed  to  be  laid  out  in  lands  to  be  settled,  one-third  on 
A.  and  his  heirs,  and  another  on  B.  and  his  heirs,  the  remaining  one- 
third,  even  after  the  investment,  must  be  part  of  the  testator's  personal 
estate,  and,  as  such,  result  to  the  executor.  "  All  the  cases,"  said  Lord 
Eldon,  "establish  this  proposition,  that  where  a  person,  dealing  upon 
his  own  property,  has  directed  a  conversion  for  a  imrtlcular  purpose,  or 
out  and  out,  but  the  proceeds  to  be  ap>plied  to  a  particular  purpose,  when 
the  purpose  fails,  the  intention  fails,  and  the  court  regards  him  as  not 
having  directed  the  conversion."(fZ)  It  may  appear  singular,  that  money 
should  go  to  the  heir,  and  land  to  the  executor ;  but  it  is  needless  to 
mention  the  numerous  cases  in  which  money  at  law  is  land  in  equity, 
and  land  at  law  is  money  in  equity. 

(c)  2  B.  C.  C.  187.  (f/j  Ripley  v.  'Waterworth.  7  Ves.  435. 


OF    RESULTING    TRUSTS.  209 

The  old  authonties(e)  upon  the  subject  are  somewhat  conflicting;  hut 
it  will  be  unnecessary  to  enter  upon  a  particular  examination  of  them,  as 
the  case  of  Cogan  v.  Stevens,(/)  before  Lord  Cottenham,  while  at  the 
rolls,  has  decided  the  point  in  favour  of  the  executor. 

Thirdly.  It  often  happens,  that  the  settlor  makes  a  primary  disposi- 
tion of  the  whole  property  to  A.  subject  to  a  particular  charge  in  favour 
of  B.,  and  the  charge  in  event  either  wholly  or  partially  fails  so  as  either 
not  to  divest,  or  only  ^^ro  tanto  divest  the  estate  of  A.  The  reader  must 
distinguish  the  preceding  cases  of  resulting  trust  from  such  a  gift  as  this; 
for  here,  as  the  entirety  is  disposed  of  in  the  first  instance  to  A.,  so  far 
as  the  charge  does  not  exhaust  it,  there  can  nothing  result  to  the  heir, 
even  should  the  charge  not  take  effect.  The  distinction  was  thus  stated 
by  Sir  J.  Leach  -. — <<  If  the  devise/'  he  said,  "  to  a  particular  person,  or 
for  a  particular  purpose,  be  intended  by  the  testator  to  be  an  exception 
from  the  gift  to  the  *residuary  devisee,  the  heir  takes  the  benefit  r>ici  nrn 
of  the  failure ;  but  if  it  be  intended  to  be  a  charge  only  upon  L  -I 
the  estate  devised,  and  not  an  exception  from  the  gift,  the  devisee  will 
be  entitled  to  the  benefit  of  the  failure. "(</) 

Thus,  if  lands  be  devised  to  A,  charged  with  a  legacy  to  B.  provided 
B.  attain  the  age  of  twenty-one,  should  B.  die  without  attaining  that  age, 
the  devise  has  become  absolute  in  A.,  and  the  will  is  to  be  read  as  if  the 
legacy  to  B.  had  never  been  mentioned.(/i)  So  if  lands  be  given  to  A. 
charged  with  a  legacy  to  B.,  and  B.  dies  in  the  testator's  lifetime. (t) 

The  construction  is  the  same,  if  lands  be  given  to  A.  subject  to  and 
charged  with  any  sum  not  exceeding  10,000/.  to  such  persons,  and  in 
such  manner,  as  the  testator  shall  appoint,  and  the  power  is  either  never 
exercised,  or  the  execution  of  it  is  void  :(/i-)  for  here,  as  the  testator  confers 
the  whole  interest  on  the  devisee,  reserving  the  power,  if  he  either  ab- 
stain from  executing  the  power,  or  appoint  for  an  illegal  purpose,  he 
does  not  diminish  that  interest,  but  the  heir  is  wholly  disinherited. (/) 

And  where  a  testator  had  devised  certain  estates  upon  trust  to  sell,  and 
out  of  the  proceeds  to  pay  5000?.  unto  his  wife,  her  executors  and  ad- 
ministrators, in  part  satisfaction  of  the  stein  o/10,000Z.  secured  to  herhy 
marriage  settlement  in  case  of  her  surviving  him,  and  to  invest  the  resi- 
due upon  certain  trusts,  and  the  wife  died  in  the  lifetime  of  the  husband, 
so  that  the  10,000/.  never  became  raisable,  it  was  held  that  the  5000/., 
instead  of  resulting  to  the  heir,  was  included  in  the  residue. (m)     The 

{e)  Fletcher  v.  Chapman,  3  B.  P.  C.  1  ;  Hayford  v.  Benlows,  Amb.  582  ;  Leslie 
V.  Duke  of  Devonshire,  2  B.  C.  C.  187;  Brown  v.  De  Laet,  4  B.  C.  C.  534;  Tregon- 
well  v.  Sydenham,  3  Dow.  207 ;  Abbot  v.  Lee,  2  Vern.  284  ;  S.  C.  Append.  No.  II. ; 
Mogg  V.  Hodges,  2  Ves.  52. 

(/)  Append.  No.  III.  5  L.  J.  N.  S.  Chy.  17  ;  Hereford  v.  Ravenhill,  1  Beav.  481. 

\g)  Cooke  v.  The  Stationers'  Company,  3  M.  &  K.  264. 

[h)  Tregonwell  V.  Sydenham,  3  Dow.  210,  per  Lord  Eldon.  Sprigg  v.  Sprigg, 
2  Vern.  394,  was  decided  on  this  principle;  Cruse  v.  Barley,  3  P.  W.  20,  should 
have  been  decided  the  same  way,  but  the  point  was  not  noticed.  So  Attorney- 
General  V.  Milner,  3  Atk.  112;  Croft  v.  Slee,  4  Ves.  60. 

(t)  Sutcliffe  v.  Cole,  3  Drew.  185. 

(k)  Jackson  v.  Hurlock,  2  Ed.  263  ;  Cooke  v.  The  Stationers'  Company,  3  M.  k 
K.  262. 

{I)  Tregonwell  v.  Sydenham,  3  Dow.  213,  per  Lord  Eldon. 

\m)  Noel  V.  Lord  Henley,  7  Price,  241  ;  S.  C.  Dan.  211,  and  322. 


210       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

construction  put  upon  the  will  was,  that  the  whole  fund  was  in  the  first 

instance  given  to  the  residuary  legatees,  subject  to  a  charge  of  5000?.  to 

arise  on  a  certain  event,  and  that  *contingency  having  never 

L  ■'■^■'•J  occurred,  the  primary  devise  of  the  entirety  was  never  divested. (?i) 

Again,  if  an  estate  be  settled  to  the  use  of  trustees  for  a  term  of 
ninety-nine  years,  upon  trusts  that  do  not  exhaust  the  whole  interest, 
and  from  and  after  the  expiration,  or  other  sooner  determination  of  the 
said  term,  and  snhject  thereto  to  uses  in  strict  settlement,  the  surplus  of 
the  term  will  be  in  trust,  not  for  the  heir,  but  for  the  devisees  in  remain- 
der, for  here  the  intention  is  express,  that,  subject  to  trusts  which  have 
been  exhausted,  the  remaindermen  shall  take  the  whole  estate. (o)  So 
if  an  estate  be  devised  to  trustees  upon  trust  within  one  year  after  the 
testator's  decease  to  raise  20007.,  and  "  after  raising  the  same"  upon 
trust  in  strict  settlement,  the  court  hold  the  2000?.  to  be  a  charge  upon 
and  not  an  exception  out  of  the  estate.  (^:)) 

And  if  the  limitation  be  to  trustees  for  ninety-nine  years  upon  the 
trust  thereinafter  expressed,  (and  the  instrument  makes  no  mention  of 
the  trusts,)  and  from  and  after  the  expiration,  or  other  sooner  determina- 
tion of  the  said  term,  to  uses  in  strict  settlement,  the  court  will  consider 
the  intention  to  be  clearly  implied,  that  the  remaindermen  should  have 
the  beneficial  enjoyment  in  the  first  instance,  and  will  read  the  will  as 
if  the  words  sM?>yec^  thereto  and  to  the  trust  thereof  had  been  actually 
expressed,  (g') 

There  has  been  much  discussion  as  to  the  applicability  to  a  charity 
legacy  of  the  rule  establishing  a  distinction  between  a  charge  tipon  and 
exception  from  a  devise.  The  question  is  one  of  difficulty,  and  before 
stating  the  apparent  result  of  the  cases,  it  may  be  useful  to  premise  a 
few  words  as  to  the  principle. 

If  a  testator  devise  an  estate  worth  10,000?.  to  trustees  in  trust  to  sell, 
and  out  of  the  proceeds  to  pay  1000?.  to  A.,  and  the  residue  to  B.,  and 
r*1921  '^'  ^^^^  ^"  ^^^  testator's  lifetime,  the  *lapse  enures  to  the  benefit 
•-  J  not  of  the  devisee  but  of  the  heir-at-law  ;  the  reason  is,  that  in 
real  estate  the  word  "  residue"  has  not  the  same  meaning  as  in  personal 
estate,  but  each  devise  is  considered  a  specific  one,  and  the  1000?.  and 
9000?.  are  distinct  fractions  of  the  estate,  so  that  if  either  fail  in  event, 
the  undisposed  of  interest  results  to  the  heir-at-law. 

If,  however,  a  testator  devise  an  estate  to  A.  and  his  heirs  charged 
with  a  legacy  of  1000?.  to  B.,  and  B.  dies  in  the  testator's  lifetime,  then, 
as  we  have  seen,  A.  takes  the  estate  free  from  the  legacy.  The  expla- 
nation is,  not  that  the  devisee  was  intended  to  take  the  legacy,  qua  legacy, 
but  the  testator  has  constituted  a  hceres  f actus  to  the  disinherison  at  all 
events  of  the  heir-at-law,  and  as  the  legacy  is  given  not  directly  to  the 

(n)  That  the  case  was  probably  decided  on  this  ground,  see  Observations  of 

Richards,  C.  B.,  Dan.  235,  and  of  Lord  Eldon,  ib.  338 

(0)  Davidson  v.  Foley,  2  B.  C.  C.  203;  Marshall  v.  Holloway,  2  Sw.  432;  Lord 

^o^i    n  n'^?^''"  ^-  ^a^l^'S  of  Hertford,  2  V.  &  B.  54 ;  and  see  Maundrell  v.  Maund- 
rell,  10  Ves.  259. 

{p)  Re  Cooper's  Trusts,  4  De  Gex,  M.  &  G.  757. 
T  orH  n     r^  T- ^^'"^'  ^9  Ves.  352;  S.  C.  Coop.  206;  overruling  the  dictum  of 
Lord  Hardwicke,  in  Brown  V.  Jones.  1  Atk.  191 


OF    RESULTING    TRUSTS.  211 

legatee,  in  which  case  it  would  be  an  exception  from  the  devise  of  the 
estate,  but  has  been  made  a  charge  to  be  raised,  so  far  as  may  be  neces- 
sary, out  of  the  estate  previously  devised,  the  legacy,  as  in  event  it  is 
not  required  to  be  raised,  sinks  for  the  benefit  of  the  devisee. 

Should  an  estate  be  devised  to  A.,  and  his  heirs,  charged  with  a  legacy 
to  a  charity,  then  these  observations  occur.  On  the  one  hand  it  may  be 
said  that  in  the  case  of  an  ordinary  charge  the  lapse  of  the  legacy  was 
an  incident  to  the  bequest,  which  the  testator  may  be  taken  to  have 
contemplated,  and  he  may  have  meant  that  on  the  occurrence  of  that 
event  the  devisee  should  be  entitled ;  but  in  the  instance  of  a  charity, 
the  object  of  the  legacy  exists  at  the  testator's  death,  and  the  event  on 
which  the  money  was  payable  has  arisen  ;  he  could  not,  therefore,  have 
intended  the  devisee  to  take  the  legacy,  which  is  bequeathed  under  the 
circumstances  to  the  charity ;  the  legacy  therefore,  in  this  case,  though 
in  form  a  charge,  is  in  fact  an  exception.  On  the  other  hand  it  may  be 
argued  that  where  the  legacy  is  admitted  to  be  a  charge  and  not  an  ex- 
ception, the  devisee  does  not  take  the  legacy,  hecause  it  was  intended 
for  him,  since  then  in  the  case  of  a  lapse  the  charge  would  not  sink 
for  the  benefit  of  the  devisee  (for  in  real  estate  that  only  goes  to  the 
devisee  which  is  not  otherwise  expressed  to  be  disposed  of,  whether  the 
bequest  take  effect  or  not,  as  in  the  case  above  noticed  of  a  trust  for 
sale,  where  the  lapse  of  a  legacy  out  of  the  proceeds  enures  to  the  bene- 
fit *of  the  heir,)  but,  nevertheless,  in  a  charge  the  devisee  does  r^j^ggn 
take  the  legacy  in  case  of  lapse,  from  the  form  in  which  the  L  -* 
legacy  is  given  ;  a  result  which  shows  the  true  view  to  be  that  the  testa- 
tor first  constitutes  the  devisee  the  hceres  factus  of  the  whole  estate, 
which  disinherits  the  heir,  and  then  as  the  legacy  is  made  a  graft  upon 
that  estate,  and  the  legacy  fails,  the  estate  is  exonerated  from  the  burden. 
Lord  Alvanley  was  of  opinion  that  this  was  the  true  ground,  and  that  it 
matters  not  in  what  way  the  failure  of  the  legacy  arises,  whether  by 
lapse,  or  the  unlawfulness  of  the  object :  "It  is  now  perfectly  settled," 
said  Lord  Alvanley,  <'  that  if  an  estate  is  devised  charged  with  legacies, 
and  the  legacies  fail,  no  matter  how,  the  devisee  shall  have  the  benefit 
of  it  and  take  the  estate."(r) 

The  cases  upon  the  subject  are  very  conflicting,  but  the  best  results  to 
be  obtained  from  them  appear  to  be  these  : 

1.  The  first  inquiry  to  be  made  is,  whether  upon  the  whole  will  the 
testator  intended  the  legacy  and  the  devise  to  be  two  distinct  indepen- 
dent gifts,  flowing  directly  from  himself  to  the  legatee  and  devisee,  or 
whether  he  devised  the  whole  estate  in  the  first  instance  to  the  devisee 
to  the  disinherison  of  the  heir,  and  then  gave  the  legacy  not  as  an 
original  gift  from  the  testator  to  the  legatee,  but  by  way  of  graft  upon 
the  estate  previously  given  to  the  devisee ;  in  the  former  case  the  legacy 
would  be  an  exception, (s)  and  in  the  latter,  a  charge. 

2.  Assuming  the  legacy  to  be,  according  to  the  true  construction  of 
the  will,  not  an  exception  but  a  charge,  then  if  the  legacy  be  given  by 

(r)  Kennell  v.  Abbott,  4  Yes.  811. 

(«)  Cooper's  Trusts,  4  De  Gex,  M.  &  G.  V57. 


212  LEW  IN    ON    THE    LAW    OF    TRUSTS,    ETC. 

way  of  a  condition  imposed  on  the  devisee,  the  legacy,  as  the  condition 
is  void,  sinks  for  the  devisee's  benefit. (f) 

3.  If  the  estate  be  devised  charged  with  a  sum,  say  of  1000/.,  to  be 
paid  to  the  testator's  executors  and  applied  in  discharge  of  his  debts 
and  legacies,  including  a  legacy  to  a  charity,  in  this  case  the  charge  is 

raisable  as  against  the  devisee,  and  *the  charity  legacy  will  be  a 
L         -1  resulting  trust  to  the  testator's  heir-at-law. (w) 

4.  If  the  estate  be  simply  devised  to  one,  charged  with  or  subject  to 
a  legacy  in  favour  of  another,  and  there  is  nothing  on  the  face  of  the 
will  to  show  that  the  legacy,  though  expressed  in  the  form  of  of  a  charge, 
was  meant  to  be  an  exception,  then  the  leaning  of  the  court  at  the 
present  day  would  appear  to  be  in  favour  of  the  devisee. (i^) 

5.  It  may  be  doubted  whether  the  circumstance  of  a  direction  for  an 
intermediate  payment  to  the  testator's  executors  of  the  sum  to  be  raised 
be  a  tenable  ground  of  distinction,  and  should  the  court  decide  in  favour 
of  the  devisee  in  a  case  under  the  fourth  head,  such  decision  would 
undoubtedly  shake  those  in  favour  of  the  heir  under  the  third.  It  would 
be  a  reasonable  and  intelligible  rule  to  lay  down  that  where  the  failure 
of  the  legacy  arises  from  any  event  which  the  testator  might  reasonably 
have  contemplated,  as,  the  death  of  the  legatee  in  his  lifetime,  then  the 
legacy  should  sink  for  the  benefit  of  the  devisee ;  but  that  where  the  legacy 
is  raisable  in  the  event  which  has  happened,  and  the  legacy  is  only  not 
paid  because  the  policy  of  the  law,  in  spite  of  the  intention,  forbids  it, 
as  in  the  case  of  a  legacy  to  a  charity,  there  the  legacy  was  in  fact  never 
given  to  the  devisee,  and  a  trust  should  result  for  the  benefit  of  the 
heir.  The  subject,  as  the  matter  now  stands,  is  in  a  very  unsatisfactory 
state. 

Fourthly.  It  has  been  stated  in  general  terms,  that,  in  the  cases  we 
have  mentioned,  a  trust  will  result  to  the  settlor  or  his  representatives, 
but  the  doctrine  must  be  received  with  at  least  this  qualification,  that 
r*195n  *^^  interest  which  would  *have  resulted  be  not  otherwise  dis- 
L        -I  posed  of  by  the  settlor  himself. 

Any  interest  that  would  have  resulted  may  of  course  be  given  away 
from  the  settlor's  representative,  by  a  particular  and  specific  devise  or 
bequest ;  it  remains  only  to  inquire  what  is  the  efi'ect  of  certain  general 
expressions. 

With  respect  to  a  testator's  realty,  the  heir  "  shall  sit  in  the  seat  of  his 

(0  Poor  V.  Mial,  6  Madd.  32;  Arnold  v.  Chapman,  1  Yes.  108;  Ridgway  v. 
Woodhouse,  7  Beav.  437.  See  contra,  Bland  v.  Wilkins,  cited  Wright  v.  Row,  1 
B.  C.  C.  61,  note.  In  Cooke  t.  Stationers'  Company,  the  M.  R.  said  the  condition 
made  no  difference,  as  it  was  no  more  than  a  charge,  3  M.  &  K.  266. 

(m)  Arnold  v.  Chapman,  1  Ves.  108;  Henchman  y.  Attorney-General,  3  M.  k  K. 

{v)  Cooke  V.  Stationers'  Company,  3  M.  &  K.  262;  Baker  v.  Hall,  12  Ves.  497, 
(but  the  heir  was  not  a  party;)  Barrington  v.  Hereford,  cited  Wright  v.  Row,  1 
R  A  a'^^'  •'^^^^soi  ^-  Hurlock,  2  Ed.  263;  Amb.  487  ;  and  see  remarks  of  Lord 
Keaesdale  and  Lord  Eldon  on  this  case  in  Tregonwell  v.  Sydenham,  3  Dow.  208- 
f«v         f      u  assumed  the  power  to  be  good,  but  that  as  it  was  exercised  in 

lavour  ot  a  chanty,  the  devisee  was  not  affected  bv  a  void  execution  of  the  power, 
ana  was  rightly  allowed  to  retain  the  estate:  in  fact,  there  was  no  appointment 
Z^A  ^"^"'y'  for  tbe  letter,  not  being  of  a  testamentary  character,  could  not  be 
read,     bee  contra,  Gravenor  v.  Hallum,  Amb.  643 


OF    RESULTING    TRUSTS.  213 

ancestor,"  unless  the  disinherison  be  expressed  or  clearly  implied.  The 
word  "  residue,"  therefore,  has  in  devises  received  a  strict  and  narrow 
construction,  and  is  held  to  mean,  not  all  that  the  testator  has  not  actually 
disposed  of,  but  only  so  much  of  which  he  has  shown  no  intention  of  dis- 
posing. Thus,  if,  before  the  late  Wills  Act,  lands  had  been  devised 
upon  trust  to  raise  5000A  for  a  charity,  the  residue  to  A.,(?c)  or  upon 
trust  to  raise  5000/.  for  a  charity,  with  a  general  devise  ''of  all  the  residue 
of  the  testator's  real  estate,  whatsoever  and  wheresoever," (.i-)  in  either 
case  the  void  legacy  would  have  resulted  to  the  heir,  and  not  have  been 
included  in  the  residuary  clause.  But  the  law  has  now  been  altered  in 
this  respect  by  the  late  Wills  Act,  which  makes  a  residuary  devise  sweep 
all  interest  undisposed  of  in  real  estate  as  a  residuary  bequest  already  did 
in  respect  of  personal  estate. (y) 

And  if  a  testator  direct  his  lands  to  be  sold,  and  afterwards  add  a 
general  bequest  of  all  his  personal  estate,[z)  or  appoint  a  person  residuary 
executor, {a)  any  part  of  the  proceeds  of  the  sale  that  is  undisposed  of 
will  not  form  part  of  the  residuary  fund  in  the  first  case,  or  pass  to  the 
residuary  executor  in  the  ^second ;  for  nothing,  properly  speak-  r^ic^OGI 
ing,  is  a  testator's  j^^rsonaZ  estate,  but  what  possesses  that  charac-  L  -I 
ter  at  the  moment  of  his  decease.  (6) 

But  the  intention  of  converting  the  property  absolutely  by  the  sale,  so 
as  to  make  the  proceeds  undisposed  of  by  the  will  pass  by  the  description 
of  the  testator's  "j>ersonaI  estate,"  may  be  collected  from  a  will  specially 
worded  j(c)  and  the  blending  of  the  real  and  personal  estates  into  one 
fund  will  be  regarded  as  a  circumstance  in  some  degree  indicative  of  such 
an  intention  ;[d)  and  this  of  course  will  be  the  case,  where  the  testator 
expressly  directs  the  proceeds  to  be  considered  as  part  of  his  person- 
alty.(e) 

(w)  Hutcheson  v.  Hammond,  3  B.  C.  C.  128;  Page  v.  Leaping-\vell,  18  Yes.  463; 
Collins  V.  Wakeman,  2  Ves.  jun.  683 ;  Cruse  v.  Barlej",  3  P.  W.  20 ;  Jones  v. 
Mitchell,  1  S.  &  S.  293;  Sprigg  v.  Sprigg,  2  Tern.  394,  per  Cur.;  Cooke  v.  Sta- 
tioners' Company,  3  M.  &  K.  264,  per  Cur.;  Anon,  case,  1  Com.  345. 

(x)  Goodright  v.  Opie,  8  Mod.  123;  Wright  v.  Hall,  Fort.  182;  S.  C.  8  Mod. 
222;  Roe  v.  Fludd,  Fort.  184;  Watson  v.  Earl  of  Lincoln,  Amb.  325;  Oke  v. 
Heath,  1  Ves.  141,  per  Lord  Hardwicke  ;  Cambridge  v.  Rous,  8  Ves.  25,  per  Sir 
W.  Grant;  Doe  v.  Underdown,  Willes,  293.  But  see  Page  v.  Leapingwell,  18  Ves. 
463  ;  but  it  does  not  appear  that  the  heir  was  a  party,  and  the  question  was  not 
discussed. 

(y)   1  Vict.  c.  26,  s.  25. 

(z)  Maugham  v.  Mason,  1  V.  k  B.  410  ;  and  see  Gibbs  v.  Rumsey,  2  V.  &  B. 
294. 

(a)  Berry  v.  Usher,  11  Ves.  87. 

(6)  See  Maugham  v.  Mason,  1  V.  &  B.  416. 

(c)  Mallabar  v.  Mallabar,  Rep.  t.  Talb.  78  ;  Brown  v.  Bigg,  7  Ves.  279 ;  Durour 
V.  Motteux,  1  Ves.  321.  (See  Mocteux's  will  correctly  stated,  Jones  y.  Mitchell,  1 
S.  &  S.  292,  note  (d)).  See  observations  on  Mallabar  v.  Mallabar,  and  Durour  y. 
Motteux,  in  Maugham  v.  Mason,  1  V.  &  B.  416. 

(d)  Compare  Durour  v.  Motteux,  1  Ves.  321,  with  Maughan  y.  Mason,  1  V.  &  B. 
417;  Hutcheson  y.  Hammond,  3  B.  C.  C.  148,  per  Lord  Thurlow ;  but  see  Berry 
V.  Usher,  11  Ves.  87. 

(e)  Kidney  v.  Koussmaker,  1  Ves.  jun.  436;  see  Lowes  v.  Hackward,  18  Ves. 
171.  In  Collins  v.  Wakeman,  2  Ves.  jun.  683,  the  sum  undisposed  of  did  not  fall 
into  the  residue  on  the  principle  adopted  in  Dayers  y.  Dewes,  3  P.  W.  40,  and 
Attorney-General  v.  Johnstone,  Amb.  577. 


2U       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

The  question  has  been  much  discussed,  what  expressions  of  a  testator 
will  amount  to  such  an  absolute  conversion  of  real  estate  into  personal, 
that  a  void  or  lapsed  legacy  given  out  of  the  proceeds  of  the  sale  shall, 
as  if  the  property  had  been  personal,  fall  into  the  residuary  bequest, 
instead  of  resulting  to  the  heir.  "  I  agree,"  said  Lord  Brougham,  "  a 
testator  may  provide  that  lapsed  and  void  legacies  shall  go  in  this  manner, 
as  if  the  testator  say  in  express  words,  ''  I  give  all  lapsed  and  void  lega- 
cies as  parcel  of  my  residue  to  the  residuary  legatee,"  and  if  he  can  do 
it  by  express  words,  he  can  do  it  by  plain  and  obvious  intention  to  be 
gathered  from  the  whole  instrument. (/)  But  what  will  amount  to  such 
an  implication  is  a  point  that  can  with  difficulty  be  brought  under  any 
very  definite  rule. 

r^-i^^n.  Apparently  the  only  principle  to  be  extracted  from  the  *autho- 
I-  -I  rities  is,  that  a  lapsed  or  void  legacy  will  pass  to  the  residuary 
legatee,  if  the  testator  expressly  declare  that  the  proceeds  of  the  sale  shall 
he  considered  as  ^^ personal  estate,"  or  if  the  intention  of  an  absolute 
conversion  into  personal  estate  for  all  the  purposes  of  the  will  can,  with- 
out the  aid  of  any  such  express  declaration,  he  gathered  from  the  general 
structure  of  the  willing)  It  was  stated  in  a  former  page,  that  if  a  testator 
direct  the  proceeds  of  the  sale  to  be  taken  as  '^personal  estate,"  a  part 
of  the  proceeds  undisposed  of  by  him  will  nevertheless  not  result  to  the 
next  of  kin.  The  distinction  between  the  next  of  kin  and  the  residuary 
legatee  is  this  :  the  former  claim  dehors  the  will,  while  the  latter  is  a 
claimant  under  the  will,  and  when  the  proceeds  of  the  sale  are  directed 
to  be  taken  as  personalty,  the  testator  must  be  understood  to  mean  for 
the  purposes  of  the  will  only,  and  not  for  any  object  beyond  it. 

With  respect  to  resulting  trusts  of  p)ersonal  estate,-  the  general  residu- 
ary bequest  sweeps  every  interest,  whether  undisposed  of  by  the  will,  or 
undisposed  of  in  event,  and  therefore  it  is  only  where  the  will  contains 
no  residuary  clause  that  the  next  of  kin  can  assert  a  claim  to  the  benefit 
of  the  resulting  interest. (/;)  But  if  any  part  of  the  personal  estate  be 
expressly  excepted  from  the  residue,  as  if  a  testator  reserve  a  sum  to  be 
disposed  of  by  a  codicil,  and  give  the  residue  not  disposed  of  or  reserved 
to  be  disposed  of  to  A.,  and  no  codicil  is  executed,  the  sum  so  specially 
excepted  will  then  result  to  the  next  of  kin.f  A 

tfr  It  may  happen  that  a  cestui  que  trust  has  died  intestate,  without  heir 
r*lQ9l  ^^  D6xt  of  kin,  and  in  that  case  the  beneficial  interest  undisposed 
•-         J  of  will,  if  the  property  be  real  estate  (a  *trust  not  being  liable  to 

(/)  Amphlett  v.  Parke,  2  R.  &  M.  232  ;  and  see  M'Cleland  v.  Shaw,  2  Sch.  & 
Lef.  545. 

{g)  Durour  v.  Motteux,  1  Ves.  321,  (see  the  will  stated  from  Reg.  Lib.  in  Jones 
V.  Mitchell,  1  S.  &  S.  292,  note  (d)) ;  Kennell  v.  Abbott,  4  Ves.  802 ;  Amphlett  v. 
Parke,  1  Sim.  275  ;  S.  C.  2  R.  &  M.  221  ;  Green  v.  Jackson,  5  Russ.  35;  S.  C.  2 
R.  &  M.  238  ;  Salt  v.  Chattaway,  3  Beav.  576.  As  to  Mallabar  v.  Mallabar.  Rep. 
t.  Talb.  78,  see  Phillips  v.  Phillips,  1  M.  &  K.  660. 

{h)  See  Dawson  v.  Clarke,  15  Ves.  417;  Brown  v.  Higgs,  4  Ves.  708  ;  S.  C.  8 
Ves.  570;  Shanley  v.  Baker,  4  Ves.  722;  Jackson  v.  Kelly,  2  Ves.  285;  Oke  v. 
Heath,  1  Ves.  141 ;  Cambridge  v.  Rous,  8  Ves.  25 ;  Cooke  v.  Stationers'  Company-, 
3M.  &K.  264.       '  °  '  '  f     •" 

(i)  Davers  v.  Dewes,  3  P.  W.  40:  Attornev-General  v.  Johnstone.  Amb.  577. 


OF    KESULTING    TRUSTS.  215 

escheat,)  sink  into  the  land  for  the  benefit  of  the  legal  tenant  ;(^)  but  in 
the  case  of  personalty  the  resulting  interest,  as  bonum  vacans,  falls  to 
the  crown  by  the  prerogative. (Z) 

Lastly,  it  may  be  noticed  that  settlements  to  cliaritalle  purposes  are 
an  exception  from  the  law  of  resulting  trusts  :  for,  upon  the  construction 
of  instruments  of  this  kind,  the  court  has  adopted  the  two  following 
rules  : — 

1.  Where  a  person  makes  a  gift,  whether  by  deed  or  will,  and  expresses 
a  general  intention  of  charity,  but  either  particularizes  no  objects,(m) 
or  such  as  do  not  exhaust  the  proceeds, («)  the  court  will  not  sufi'er  the 
property  in  the  first  case,  or  the  surplus  in  the  second,  to  result  to  the 
settlor  or  his  representatives,  but  will  take  upon  itself  to  execute  the 
general  intention,  by  declaring  the  particular  purposes  to  which  the  fund 
shall  be  applied. 

2.  Where  a  person  settles  lands,  or  the  rents  and  profits  of  lands  to 
purposes  which  at  the  time  exhaust  the  whole  proceeds,  but,  in  conse- 
quence of  an  increase  in  the  value  of  the  estate,  an  excess  of  income 
subsequently  arises,  the  court  will  order  the  surplus,  instead  of  resulting 
to  the  heir,  to  be  applied  in  the  same  or  a  similar  manner  with  the  ori- 
ginal amount,  ^o) 

*But  even  in  the  case  of  charity,  if  the  settlor  do  not  give  the  pj^gg-i 
land  or  the  whole  rents  of  the  land,  but,  noticing  the  property  L  ^  -I 
to  be  of  a  certain  value,  appropriate  part  only  to  the  charity,  the  residue 
will  then  follow  the  general  rule,  and  result  to  the  heir-at-law. (jj) 

The  exceptions  we  have  noticed  were  established  at  an  early  period, 
when  the  doctrine  of  resulting  trusts  was  imperfectly  understood.(2) 
The  interest  of  the  heir  was  shut  entirely  out  of  sight,  and  the  question 

{k)  Henchman  v.  Attorney-General,  3  M.  &  K.  485  ;  Taylor  v.  Haygarth,  14 
Sim.  8. 

(I)  See  S.  C;  and  see  Middleton  v.  Spicer,  1  B.  C.  C.  201  ;  Barclay  v.  Russell, 
3  Yes.  424  ;  Taylor  v.  Haygarth,  ubi  supra. 

(m)  Attorney-General  v.  Herrick,  Amb.  1:12. 

\n)  Attorney-General  v.  Haberdashers'  Company,  4  B.  C.  C.  102  ;  S.  C.  2  Ves. 
jun.  1;  Attorney-General  v.  Minshull,  4  Ves.  11;  Attorney-General  v.  Arnold, 
Shower's  P.  C.  22  ;  and  see  Attorney-General  v.  Sparks,  Amb.  201 ;  and  see  Lord 
Eldon's  observations,  Attorney-General  v.  Mayor  of  Bristol,  2  J.  &  W.  319. 

(o)  Inhabitants  of  Eltham  v.  Warreyn,  Duke,  67;  Sutton  Colefield  case,  second 
resolution.  Id.  68  ;  Hynshaw  v.  Morpeth  Corporation,  Id.  69  ;  Thetford  School 
case,  8  Re.  130  b ;  Attorney-General  v.  Johnson,  Amb.  190  ;  Kensington  Hastmgs' 
case,  Duke,  71  ;  Attorney-General  v.  Mayor  of  Coventry,  2  Vern.  397,  reversed  in 
D.  P.  7  B.  P.  C.  236,  (see  the  foregoing  cases  commented  upon  by  Lord  Eldon  m 
Attorney-General  V.  Mayor  of  Bristol,  2  J.  &W.  316  ;)  Attorney-General  v.  Coopers' 
Company,  19  Ves.  189,  per  Lord  Eldon;  Attorney-General  v.  Wilson,  3  M.  &  K. 
362  ;  Lad  v.  London  City,  Mos.  99 ;  Attorney-General  v.  Coopers'  Company,  3 
Beav.  29;  Attorney-General  v.  Master  of  Catherine  Hall,  Cambridge,  Jac.  381; 
Attorney-General  T.  Drapers'  Company,  2  Beav.  508  ;  4  Beav.  67  ;  Attorney-General 
V.  Christ's  Hospital,  ib.  73;  Attorney-General  v.  Merchants  Venturers'  Society,  5 
Beav.  338 ;  Attorney-General  v.  Corporation  of  Southmolton,  14  Beav.  357  ; 
Attorney-General  v.  Caius  College,  2  Keen,  150  ;  and  see  Attorney-General  v. 
Smythies,  2  R.  &  M.  7l7  ;  Attorney-General  v.  Drapers'  Company,  6  Beav.  382. 

Ip)  See  Attorney-General  v.  Mayor  of  Bristol,  2  J.  &  W.  307  and  332  ;  Attorney- 
General  V.  Gascoigne,  2  M.  &  K.  647. 

[q)  Attorney-General  v.  Johnson,  Amb.  190,  per  Lord  Hardwicke  ;  Attorney- 
General  V.  Mayor  of  Bristol,  2  J.  &  W.  307,  per  Lord  Eldon. 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


216 

was  viewed  as  between  the  charity  and  the  trustee.(r)  Were  the  subject 
still  unprejudiced  by  authority,  there  is  little  doubt  but  the  court  would, 
at  the  present  day,  be  governed  by  the  general  principle,  and  hold  a  trust 
to  result. (s) 

SECTION  II. 

RESULTING   TRUSTS   UPON   PURCHASES   IN   THE   NAMES   OF   THIRD 

PERSONS. 

I.    Where  the  purchase  is  in  the  name  of  a  stranger. 

"The  clear  result,"  said  Lord  Chief  Baron  Eyre,  "of  all  the  cases, 
without  a  single  exception,  is  that  the  trust  of  a  legal  estate,  whether 
freehold,  copyhold  or  leasehold,  whether  taken  in  the  names  of  the  pur- 
chaser and  others  jointly,  or  in  the  name  of  others  without  that  of  the  pur- 
chaser; whether  in  one  name  or  several,  whether  jointly(<)  or  sMccessive,(<^) 
results  *to  the  man  who  advances  the  purchase-money  (m)  and  it 
L  •^'^^J  goes  on  a  strict  analogy  to  the  rule  of  the  common  law,  that  where 
a  feoffment  is  made  without  consideration,  the  use  results  to  the  feoffor.(v) 

But  no  trust  will  result  unless  the  person  advance  the  money  in  the 
character  of  a  purchaser;  for  if  A.  discharge  the  purchase-money  by 
way  of  loan  to  B.,  in  whose  name  the  conveyance  is  taken,  no  trust  will 
result  in  favour  of  A.,  who  is  merely  a  creditor  of  B.(?6-)  And,  on  the 
other  hand,  should  B.  advance  the  purchase-money,  but  only  on  account 
of  A.,  then  A.  is  the  owner  in  equity,  and  B.  stands  in  the  light  of  a 
creditor,  (.r) 

And  not  only  real  estate  but  persowo%  also  is  governed  by  these  prin- 
ciples, as  if  a  man  take  a  bond,(^)  or  purchase  an  annuity,(s)  stock, (a) 
or  other  chattel  interest,(6)  in  the  name  of  a  stranger,  the  equitable 
ownership  results  to  the  person  from  whom  the  consideration  moved. 

(r)  See  Thetford  School  case,  8  Re.  130. 

(s)  See  Attorney-General  v.  Mayor  of  Bristol,  2  J.  &  W.  307. 

{t)  See  Ex  parte  Houghton,  17  Ves.  251 ;  Rider  v.  Kidder,  10  Ves.  367. 

[tt)  Withers  v.  Withers,  Amb.  151  ;  Howe  v.  Howe,  1  Vern.  415  ;  Goodright  t, 
Hodges,  1  Watli.  Cop.  227  ;  S.  C.  Lofift,  230 ;  Smith  v.  Baker,  1  Atk.  385 ;  Clarke 
V.  Danvers,  1  Ch.  Ca.  310;  Prankerd  v.  Prankerd,  1  S.  &  S.  1. 

[u)  Redington  v.  Redington,  3  Ridg.  177,  per  Lord  Loughborough;  Hungate  v. 
Hungate,  Tothill,  120;  Ex  parte  Vernon,  2  P.  W.  549;  Ambrose  v.  Ambrose,  1  P. 
W.  321 ;  Willis  v.  Willis,  2  Atk.  71 ;  Woodman  v.  Morrel,  2  Freem.  33,  per  Cur.; 
ib.  123  ;  Finch  v.  Finch,  15  Ves.  50,  per  Lord  Eldon;  Grey  v.  Grey,  2  Sw.  597  ; 
S.  C.  Finch.  340,  per  Lord  Nottingham ;  Wray  v.  Steele,  2  V.  &  B.  390,  per  Sir 
T.  Plumer  ;  Smith  v.  Camelford,  2  Ves.  jun.  712,  per  Lord  Loughborough  ;  Anon. 
2  Vent.  361;  Pelly  v.  Maddin,  21  Vin.  Ab.  498;  Lever  v.  Andrews,  7  B.  P.  C. 
288;  Lade  v.  Lade',  1  Wils.  21;  Groves  v.  Groves,  3  Y.  &  J.  170,  per  Ch.  Bar. 
Alexander;  Murless  v.  Franklin,  1  Sw.  17,  18,  per  Lord  Eldon;  Crop  v.  Norton, 
9  Mod.  235;  S.  C.  Barn.  184;  S.  C.  2  Atk.  75,  per  Lord  Hardwicke ;  Trench  v. 
Harrison,  17  Sim.  111. 

(«)  Dyer  v.  Dyer,  2  Cox,  93 ;  S.  C.  1  Watk.  Cop.  218. 

{w)  See  Bartlett  v.  Pickersgill,  1  Ed.  516;  Crop  v.  Norton,  9  Mod.  235. 

(x)  See  Aveling  v.  Knipe,  19  Ves.  441.  {y)  Ebrand  v.  Dancer,  2  Ch.  Ca.  26. 

(z)  Mortimer  v.  Davies,  cited  Rider  v.  Kidder,  10  Ves.  363,  366. 

{a)  Rider  v.  Kidder,  10  Ves.  360  ;  Lloyd  v.  Read,  1  P.  W.  607;  and  see  Sidmouth 
V.  Sidmouth,  2  Beav.  447. 

[b)  See  Ex  parte  Houghton,  17  Ves.  253. 


OF    RESULTING    TRUSTS,  217 

In  Crop  V.  Norton(c)  Lord  Hardwicke  doubted  whether  the  rule  was 
not  confined  to  an  individual  purchaser.  <'  Suppose/'  he  said,  "  two  per- 
sons purchase  an  estate,  and  club  for  the  consideration-money ;  suppose 
the  conveyance  is  taken  in  the  name  of  one  of  them  only,  and  it  recites 
that  the  whole  of  the  *purchase-money  was  paid  by  the  other.  r^.;)o-i-i 
I  do  not  know  a  case  wherein  it  has  ever  been  declared  there  ^  "  J 
could  be  a  resulting  trust  in  part  of  the  estate  for  the  benefit  of  the 
other."^fZ)  But  in  Wray  v.  Steel, (e)  the  point  was  expressly  decided  in 
conformity  with  the  general  principle,  and  Sir  Thomas  Plumer  observed, 
that  Lord  Hardwicke  could  not  have  used  the  language  ascribed  to  him; 
for  what  was  there  applicable  to  an  advance  by  a  single  individual  which 
was  not  equally  applicable  to  a  joint  advance  under  similar  circum- 
stances ? 

If  two  persons  joining  in  a  purchase,  take  the  conveyance,  not  in  the 
name  of  a  stranger,  or  of  one  of  themselves,  but  in  the  names  of  hoth  of 
themselves  as  joint-tenants,  then  a  distinction  must  be  observed  between 
an  equal  and  an  unequal  contribution.  In  the  former  case  there  in  no- 
thing on  which  to  ground  the  presumption  of  a  resulting  trust,  for  per- 
sons making  equal  advances  might  very  consistently  take  an  estate  in 
joint-tenancy,  as  each  has  it  in  his  power  to  compel  a  partition,  or  by 
executing  a  conveyance  to  pass  a  moiety  of  the  estate. (/)  And  so,  if  two 
persons  contract  for  a  purchase  to  them  and  their  heirs,  and  one  of  them 
die,  the  court,  if  they  paid  equal  proportions,  will  specifically  perform  the 
agreement,  by  ordering  a  conveyance,  not  to  the  heir  of  the  deceased  per- 
son and  the  survivor  as  tenants  in  common,  but  to  the  survivor  alone. (^f) 
But  even  where  equal  contributors  take  a  conveyance  in  joint- tenancy, 
collateral  circumstances  may  induce  a  court  of  equity  to  construe  it  a 
tenancy  in  common,  as  if  two  people  join  in  lending  money  upon  mort- 
gage, equity  says  it  could  not  have  been  the  intention  that  the  interest 
in  that  should  survive  j  but  though  they  took  a  joint  security,  each  meant 
to  lend  his  own,  and  take  back  his  own.(/<)  And  so  where  two  tenants  in 
*common,  of  a  mortgage  term,  purchase  the  equity  of  redemption  |-^^„^-. 
to  them  and  their  heirs,  it  was  held  the  nature  of  the  inheritance  L  ""  J 
should  follow  that  of  the  term. (A  And  in  all  cases  of  a  joint  under- 
taking or  partnership,  by  way  of  trade,  or  upon  the  hazard  of  profit  and 
loss,  the  jus  accrcscendi  is  excluded,  and  the  survivors  are  trustees,  in 
due  proportions,  for  the  representatives  of  those  who  are  dead.(Z;)     And 

(c)  Barn.  179;   S.  C.  9  Mod.  233;  S.  C.  2  Atk.  74. 

(d)  Barn.  184.  (e)  2  V.  &  B.  388. 

(/)  Rea  T.  Williams,  Append,  to  Vend,  and  Purch.  No.  24  ;  Moyse  v.  Gyles,  2 
Vern.  385 ;  York  v.  Eaton,  2  Freem.  23  ;  Rigden  v.  Vallier,  3  Atk.  735,  per  Lord 
Hardwicke;  Hayes  v.  Kingdome,  1  Veru.  33;  Aveling  v.  Knipe,  19  Ves.  444,  per 
Sir  W.  Grant;  Lake  v.  Gibson,  1  Eq.  Ca.  Ab.  291,  per  Sir  Jos.  Jekj-ll ;  Anon. 
Cartli.  15;  and  see  Thicknesse  v.  Vernon,  2  Freem.  84. 

{ff)  Aveling  v.  Knipe,  19  Ves.  441. 

(h)  Morley  v.  Bird,  3  Ves.  631,  per  Lord  Alvanley;  Rigden  v.  Vallier,  3  Atk. 
734,  per  Lord  Hardwicke;  Anon,  case.  Garth.  16;  Partridge  v.  Pawlet,  1  Atk.  467  ; 
Petty  V.  Styward,  1  Ch.  Re.  57  ;  Vickers  v.  Cowell,  1  Beav.  529. 

(i)  Edwards  v.  Fashion,  Pr.  Ch.  332  ;  and  see  Aveling  v.  Knipe,  19  Ves.  444. 

(k)  Lake  v.  Gibson,  1  Eq.  Ca.  Ab.  290 ;  S.  C.  (by  name  of  Lake  v.  Craddock,) 
affirmed  3  P.  W.  158:  Jeffereys  v.  Small.  1  Vern.  217;  Elliot  v.  Brown,  cited 


218       LEWIN  OX  THE  LAW  OF  TRUSTS,  ETC. 

where  the  purchasers  pay  equally,  and  take  a  joint  estate,  and  one  after- 
wards Improves  the  property  at  his  own  cost,  he  has  a  lien  upon  the  land 
jtro  tanto  for  the  money  he  has  expended. (?)  Should  the  contribution 
of  the  parties  be  unequal,  then  in  all  cases  a  trust  results  to  each  of  them 
in  proportion  to  the  amount  originally  subscribed. (?7^) 

If  A.  discharo-e  the  fine  on  a  grant  of  copyholds  to  B.,  C,  and  D.  suc- 
cessively for  their  lives,  the  equitable  interest  will  result  to  A. ;  but  should 
A.  die  intestate,  on  whom  will  the  remaining  equity  devolve  ?  Estates 
pur  autre  vie  in  copyholds  were  not  within  the  Statute  of  Frauds,(«)  nor 
the  1-4  G.  2  c.  20,  s.  9,(o)  and  before  the  late  Wills  Act  the  questions 
were  asked,  can  the  heir  take  an  estate  which  has  no  descendible  pro- 
perty ?  or  can  the  executor  claim  as  assets  what  is  not  of  the  nature  of 
personalty  ?  or  shall  the  tenants  of  the  legal  estate  become  the  beneficial 
proprietors  in  the  absence  of  any  one  to  advance  a  better  title?  In  Clark 
V.  I)anvers(/>)  the  plaintifi"  was  both  heir  and  executor  of  the  equitable 
owner,  and  was  decreed  the  benefit  of  the  trust.  In  Howe  v.  Howe^jj 
the  administratrix  was  held  entitled,  and  so  it  was  allowed  in  Rundle  v. 
Ptundle,(r)  and  was  determined  in  Withers  v.  Withers,(s)  and  was  subse- 
quently  sanctioned  by  the  high  authority  of  Lord  *Mansfield. 
L  "  -1  (^  It  is  always  presumed,"  said  his  lordship,  "  that  whoever  pays 
the  fine  takes  for  his  own  use  and  benefit,  and  does  not  mean  to  serve  the 
others,  who  are  mere  nominees  to  give  as  large  an  estate  as  by  the  rules 
of  the  manor  he  can  have ;  and  as  his  personal  estate  is  diminished  hy 
the  payment  of  the  fine-money  his  personal  representative  is  entitled  to  the 
advantage  remit ing  from  it."(t)  Now  by  the  late  Wills  Act  (1  Y.  c.  26, 
s.  6,)  it  is  declared,  that  an  estate ^wr  autre  vie  in  copyhold  shall,  if  not 
disposed  of  by  the  will  of  the  grantee,  go  to  his  personal  representative. 

The  court  cannot  imply  a  resulting  trust  in  evasion  of  an  act  of  parlia- 
ment, and  therefore  if  A.,  on  purchasing  a  ship,  take  the  transfer  in  the 
name  of  B.,  the  complete  ownership,  both  legal  and  equitable,  is  in  B.(«) 
In  order  to  enforce  the  navigation  laws,  and  secure  to  British  subjects 
the  exclusive  enjoyment  of  British  privileges,  the  Eegistry  Acts  require 
an  exact  history  to  be  kept  of  every  ship,  how  far  throughout  her  exist- 
ence she  has  been  British  built  and  British  owned,  and  if  implied  trusts 
were  pei-mitted  the  whole  intent  of  the  legislature  might  be  indirectly 
defeated. (r)  It  was  at  first  contended  that  the  acts  were  not  meant  to 
apply  to  transfers  by  operation  of  law  ;  nor  are  they  to  transfers  by  mere 
operation  of  law  that  could  not  be  effected  in  the  mode  prescribed  by 

Jackson  v.  Jackson,  9  Ves.  597  ;  Lyster  v.  Dolland,  1  Yes.  jun.  434,  435,  per  Lord 
Thurlow;  and  see  York  v.  Eaton,  2  Freem.  23. 

(Z)  Lake  v.  Gibson,  1  Eq.  Ca.  Ab.  291,  per  Sir  J.  JekylL 

(m)  Lake  v.  Gibson,  1  Eq.  Ca.  Ab.  291,  per  Sir  J.  JekyH;  Rigden  v.  Vallier,  3 
Atk.  735.  per  Lord  Hardwicke. 

(n)  29  Car.  2,  c.  3,  s.  12.  (o)  Rundle  v.  Rundle,  Amb.  152. 

Ip)  1  Ch.  Ca.  310.  Ig)  1  Yern.  415. 

(r)  2  Yern.  252,  264;  S.  C.  Amb.  152.  (s)  Amb.  151. 

(t)  Goodright  v.  Hodges,  1  Watk.  Cop.  228 ;  and  see  RumboU  v.  Rumboll,  2 
Ed.  15. 

(m)  Ex  parte  Yallop,  15  Ves.  60  ;  Ex  parte  Houghton,  17  Ves.  251 ;  Camden  v. 
Anderson,  5  T.  R.  709. 

(y)  See  Ex  parte  Yallop.  15  Ves.  66,  69. 


OF    RESULTING    TRUSTS.  219 

the  statutes,  as  in  the  transfer  to  executors,  to  assignees  of  bankrupts,  &e. ; 
but  they  do  reach  the  case  of  transfers  not  by  mere  operation  of  law, 
but  connected  with  the  acts  of  parties,  and  arising  ex  contractu. iic\ 

Upon  the  same  principle,  while  the  papistry  laws  were  in  force,  if  A., 
a  papist,  had  purchased  an  estate  in  the  name  of  B.,  the  court  could  not 
have  presumed  a  resulting  trust  to  A.,  which,  as  soon  as  raised,  would 
have  become  forfeitable  to  the  state. (j;) 

And  so  if  a  purchaser  take  a  conveyance  in  the  name  of  r:f:.7Aj^-| 
^another,  with  the  view  of  giving  him  a  vote  for  a  member  of  L  *"  J 
parliament,  he  cannot  afterwards  claim  the  beneficial  ownership,  for  the 
operation  of  such  a  right  would  render  the  original  purchase  fraudulent,  (y) 

As  the  Statute  of  rrauds(s)  extends  to  creations  or  declarations  of 
trusts  by  parties  only,  and  does  not  affect,  indeed  expressly  excepts, 
trusts  arising  by  operation  or  construction  of  law,  it  is  competent  for  the 
real  purchaser  to  prove  his  payment  of  the  purchase-money  by  pa/'o?, 
even  though  it  be  otherwise  expressed  in  the  deed. 

In  Kirk  v.  Webb(o)  it  was  argued  '^  there  could  be  no  trust  unless 
there  were  a  declaration  in  the  deed  to  that  purpose,  for  by  the  statute 
there  could  be  no  trust  unless  it  were  declared  in  writing ;  that  if  it  were 
a  resulting  trust,  it  was  made  so  by  parol  proof,  which  was  directly  con- 
trary to  the  statute,  and  would  open  a  door  to  all  the  mischiefs  it  was 
intended  to  prevent;  that  it  would  introduce  an  utter  uncertainty  into 
all  men's  titles,  for  the  best  title  might  be  spoiled  by  proving  the  pur- 
chase-money to  be  another  person's  ;"  and  the  court  refused  to  admit  the 
evidence,  and  the  decision  was  followed  in  subsequent  cases  ■,{h\  however, 
the  doctrine,  though  supported  by  numerous  precedents,  has  since  been 
clearly  overthrown  by  the  concurrent  authority  of  the  most  distinguished 
judges.(c) 

The  rule  as  at  present  established  will  not  warrant  the  admission  of 
parol  evidence,  where  an  estate  is  purchased  by  an  agent,  and  no  part  of 
the  consideration  is  paid  by  the  employer ;  for  though  an  agent  is  a 
trustee  in  equity,  yet  the  *trust  is  one  arising  ex  contractxi,  i-jj^prv'-i 
and  not  resulting  by  operation  of  law.(f/)  The  agent  may  be  L  "^  J 
indicted  for  perjury  in  denying  his  character,  and  may  be  convicted,  yet 
the  court  has  no  power  to  decree  the  trust,  (c)     The  employer,  therefore, 

[w)  See  Ex  parte  Yallop,  15  Ves.  68  :  Ex  parte  Houghton,  17  Ves.  254. 

[x)  See  Redington  v.  Redington,  3  Ridg.  184. 

(y)  Groves  v.  Groves,  3  Y.  &  J.  163,  see  172,  173. 

(2)   29  Car.  2,  c.  3.  (a)  Prec.  Ch.  84. 

{b)  Heron  v.  Heron,  Pr.  Ch.  163 ;  S.  C.  Freem.  248 ;  Skett  v.  Whitmore,  Freem. 
280;  Kinder  v.  Miller,  Pr.  Ch.  172;  and  see  Halcott  v.  Markant,  Pr.  Ch.  168; 
Hooper  v.  Eyles,  2  Vern.  480;  Xewton  v.  Preston,  Pr.  Ch.  103  ;  Cox  v.  Bateman, 
2  Yes.  19;  Ambrose  v.  Ambrose,  1  P.  W.  321  ;  Deg  v.  Deg,  2  P.  W.  414.  The 
earlier  case  of  Gascoigne  v.  Thwing,  1  Yern.  366,  accorded  with  the  modern 
doctrine. 

(c)  Ryall  V.  Ryall,  1  Atk.  59;  S.  C.  Amb.  413;  Willis  v.  Willis,  2  Atk.  71; 
Bartlett  v.  Pickersgill,  1  Ed.  515  ;  Lane  v.  Dighton,  Amb.  409  ;  Knight  v.  Pechej, 
1  Dick.  327  ;  S.  C.  cited  from  MS.  3  Vend.  &  Purch.  258  ;  Groves  v.  Groves,  3  Y.  & 
J.  163;  Lench  v.  Lench,  10  Yes.  517. 

(d)  Bartlett  v.  Pickersgill,  1  Ed.  515 ;  Rastel  v.  Hutchinson,  1  Dick.  44;  Lamas 
V.  Bayly,  2  Yern.  627  ;  Atkins  v.  Rowe,  Mose.  39  ;  S.  C.  Cas.  Dom.  Proc.  1730. 

(e)  Bartlett  V.  Pickersgill,  1  Ed.  517. 


220       LEWIX  ON  THE  LAW  OF  TRUSTS,  ETC. 

as  he  cannot  profit  by  the  conviction,  is  not  prevented  by  interest  from 
beino"  a  witness  against  the  agent.(/) 

And  parol  evidence,  where  admitted,  must  prove  the  fact  very 
clearly  ;{g)  though  no  objection  lies  against  the  reception  of  mere  cir- 
cumstantial evidence,  as  that  the  circumstances  of  the  pretended  pur- 
chaser were  so  mean  as  to  make  it  impossible  he  should  have  paid  the 
purchase-money  himself.(A) 

Should  the  nominal  purchaser  deny  the  trust  by  his  answer,  there 
seems  to  be  no  reason  why  parol  evidence  should  not  be  admitted  to  esta- 
blish the  fact  against  him ;  for,  before  the  Statute  of  Frauds,  parol  evi- 
dence was  undoubtedly  admissible,  and,  as  trusts  by  operation  of  law  are 
expressly  excepted  from  the  statute,  by  what  rule  is  parol  evidence  to  be 
excluded  ?(A  But  the  solemnity  of  the  defendant's  oath  will  of  course 
require  a  considerable  weight  of  evidence  to  overcome  its  impression.  (Z:) 

It  is  laid  down  by  Mr.  Sanders,  that  "  if  a  person  at  his  death  leave 
any  papers  disclosing  the  real  circumstances  of  the  case,  the  court  will 
raise  the  trust  even  against  the  express  declaration  of  the  purchase- 
deed. "(^  We  have  seen  that,  according  to  the  latest  authorities,  parol 
evidence  is  in  ordinary  *cases  admissible  against  the  language 
L  -1  of  the  purchase-deed  ;  but,  if  Mr.  Sander's  opinion  to  the  con- 
trary(wi)  were  well  founded,  it  does  not  appear  how  mere  papers  would 
satisfy  the  requisitions  of  the  statute ;  for,  to  have  that  effect,  the  writ- 
ings ought  also  to  be  signed  hy  the  party.  The  cases  of  Ryall  v.  Ryall(tt) 
and  Lane  v.  Dighton,(o)  which  are  cited  for  the  position,  do  not  at  all 
turn  upon  the  distinction  suggested. 

It  is  observed  by  the  same  writer,  that,  "  after  the  death  of  the  sup- 
posed nominal purcliaser,  parol  proof  alone  can  in  no  instance  be  admitted 
against  the  express  declaration  of  the  deed;"(p)  but  the  cases  relied 
upon  in  support  of  this  doctrine(^)  do  not  distinguish  between  proofs  in 
a  person's  lifetime  and  after  his  decease  :  they  are  certainly  authorities 
for  the  exclusion  of  parol  evidence  universall}',  but  in  this  respect,  as 
before  noticed,  they  have  been  subsequently  overruled.  It  would  seem, 
upon  principle,  that  the  death  of  the  nominal  purchaser  cannot  affect 

(/)  Kingv.  Boston,  4  East,  5T2. 

(g)  Gascoigne  v.  Thwing,  1  Vern.  306;  Halcott  v.  Markant,  Pr.  Ch.  168;  Willis 
V.  Willis,  2  Atk.  71 ;  Goodright  v.  Hodges,  1  Watk.  Cop.  229,  per  Lord  Mansfield; 
Groves  v.  Groves,  3  Y.  &  J.  163  ;  and  see  Rider  v.  Kidder,  10  Ves.  364. 

(A)  Willis  V.  Willis,  2  Atk.  71,  per  Lord  Hardwicke ;  and  see  Lench  v.  Lench, 
10  Ves.  518  ;  AVilkins  v.  Stevens,  1  Y.  &  C.  Ch.  Ca.  431. 

[i)  In  Bartlett  v.  Pickersgill,  1  Ed.  515,  where  the  defendant  denied  the  trust, 
Lord  Henley  said,  if  the  plaintiff  had  paid  any  part  of  the  purchase-money,  be 
would  have  admitted  the  evidence ;  and  see  Edwards  v.  Pike,  1  Ed.  267.  Mr. 
Sanders,  (Uses  and  Trusts,  c.  3,  s.  7,  div.  2,)  dissents  from  the  doctrine ;  but  the 
authorities  cited  by  him  to  the  contrary  do  not  appear  to  warrant  his  conclusion. 

[k)  See  Cooth  v.  Jackson,  6  Ves.  39. 

[1)  Uses  and  Trusts,  c.  3,  s.  7,  div.  2. 

(to)  Uses  and  Trusts,  c.  3,  s.  7,  div.  2. 

(n)  Amb.  413.  (o)  Arab.  409. 

{p)  Uses  and  Trusts,  c.  3,  s.  7,  div.  2. 

(?)  Kirk  V.  Webb,  Pr.  Ch.  84;  S.  C.  Freem.  229;  Heron  v.  Heron,  Pr.  Ch.  163; 
Halcott  V.  Markant.  id.  168  ;  Kinder  v.  Miller,  id.  172;  S.  C.  2  Vern.  440;  Deg  v. 
Deg,  2  P.  W.  414.  per  Lord  King. 


OF    RESULTING    TRUSTS.  221 

the  admissihiltfy  of  parol  testimony,  whatever  effect  it  may  have  in  de- 
tracting from  its  loeight. 

In  the  question,  whether  a  purchase  in  ^he  name  of  a  third  person 
can  be  established  by  parol  testimony  is  also  involved  the  question, 
whether  trust-money  can  be  followed  into  land  by  parol.  A  purchase 
with  trust-money  is  virtually  a  purchase  paid  for  by  the  cestuis  que  trust; 
and  on  the  ground  that  such  a  purchase  is  a  trust  resulting  by  operation 
of  law,  and  not  within  the  purview  of  the  Statute  of  Frauds,  it  has  been 
settled  that  parol  evidence  is  clearly  admissible. (?•) 

On  the  other  hand,  as  the  trust  results  to  the  real  purchaser  by  pre- 
sumption of  law,  which  is  merely  an  arhitrary  implication  in  the 
absence  of  reasonable  jiroof  to  the  contrary,  the  nominal  purchaser  is  at 
liberty  to  rebut  the  presumption  by  *the  production  of  parol  evi-  1-^0^7-1 
dence  showing  the  intention  of  conferring  the  beneficial  in-  L  J 
terest.(s)  And  as  he  may  repel  the  presumption  in  toto,  so  may  he  in 
part ;  as  by  proving  the  purchaser's  intention  to  permit  the  legal  tenant 
to  enjoy  beneficially  for  life.(^) 

And  when  it  has  been  once  ascertained  what  was  the  understanding 
of  the  parties  at  the  time  of  the  purchase,  it  is  not  competent  to  the  real 
purchaser  to  put  a  diffierent  construction  upon  the  instrument  at  any 
subsequent  period  ;(?i)  and  even  if  under  such  circumstances  the  legal 
tenant  agreed  afterwards  to  execute  a  conveyance  to  the  person  who  paid 
the  money,  the  court  would  not  enforce  the  contract,  if  merely  volun- 
tary, (t;)  The  real  purchaser  may  also  be  barred  of  his  interest  by  laches, 
for  the  presumption  of  a  resulting  trust  will  not  be  raised,  after  a  great 
length  of  time,  in  opposition  to  the  evidence  arising  from  actual  enjoy- 
ment. (?f) 

II.    Where  the  purchase  is  made  hy  a  father  in  the  name  of  his  child. 

In  this  case,  instead  of  a  resulting  trust,  the  presumption  of  law  is, 
that  a  provision  was  intended. (.r)  The  grounds  of  this  doctrine  are  thus 
stated  by  Lord  Nottingham  :(^) — 

1.  "  The  natural  consideration  of  blood  and  affection  is  so  apparently 

(r)  Lench  v.  Lench,  10  Yes.  517,  per  Sir  W.  Grant ;  Rjall  v.  Ryall,  1  Atk.  59  ; 
S.  C.  Amb.  413 ;  Lane  v.  Dighton,  Amb.  409 ;  Balgnej-  v.  Hamilton,  Amb.  414  ; 
Trench  v.  Harrison,  17  Sim.  111. 

(5)  Goodright  v.  Hodges,  1  Watk.  Cop.  227;  S.  C.  Lofft,  230  ;  Rider  v.  Kidder, 
10  Ves.  364 ;  Rundle  v.  Rundle,  2  Vern.  252,  264;  Taylor  v.  Taylor,  1  Atk.  386  ; 
Redington  v.  Redington,  3  Ridg.  106;  see  165,  177,  178. 

{t)  Rider  v.  Rider,  10  Ves.  360  ;  see  368 ;  Benbow  v.  Townsend,  1  M.  A;  K.  506. 

lu\  Groves  v.  Groves,  3  Y.  &  J.  172,  per  Alexander,  C.  B. 

\v)  Groves  v.  Groves,  3  Y.  &  J.  163. 

\iv)  Delane  v.  Delane,  7  B.  P.  C.  279 ;  and  see  Groves  v.  Groves,  3  Y.  &  J.  172. 

(z)  Dyer  v.  Dyer,  2  Cox,  93 ;  S.  C.  1  Watk.  Cop.  219,  per  Eyre,  C.  B.;  Grey  v. 
Grey,  2  Sw.  597  ;  S.  C.  Finch.  340,  per  Lord  Nottingham  ;  Sidmouth  v.  Sidmouth, 
2  Beav.  454;  per  Lord  Langdale  ;  Redington  v.  Redington,  3  Ridg.  176,  per  Lord 
Loughborough  ;  Christy  v.  Courteuay,  13  Beav.  96  ;  Elliot  v.  Elliot,  2  Ch.  Ca. 
231,  agreed;  Bedvrell  v.  Froome,  cited  2  Cox,  97,  and  1  Watk.  Cop.  224,  per  Sir 
T.  Sewell ;  Goodwright  v.  Hodges,  1  Watk.  Cop.  228,  per  Lord  Mansfield ;  Pole  v. 
Pole,  1  Ves.  76,  per  Lord  Hardwicke  ;  Lamplugh  v.  Lamplugh,  1  P.  W.  Ill,  2d 
point;  Woodman  v.  Morrel,  2  Freem.  33,  per  Cur.;  Murless  v.  Franklin,  1  Sw.  17, 
18,  per  Lord  Eldon  ;  Finch  v.  Finch,  15  Ves.  50,  joer  eundcm ;  Fearne's  P.  W. 
327,  &c. 

{y)  Grey  v.  Grey,  2  Sw.  598. 

February,  1858. — 15 


222  LEWIN    ox    THE    LAW    OF    TRUSTS,    ETC. 

r*onQ-i  predominant,  that  those  acts  which  would  imply  a  *trust  in  a 
[  -'^^J  strano-er  will  not  do  so  in  a  son;  and,  ergo^  the  father  who  would 
check  and  control  the  appearance  of  nature,  ought  to  provide  for  himself 
by  some  instrument  or  some  clear  proof  of  a  declaration  of  trust,  and  not 
depend  upon  an  implication  of  law. 

2.  "  All  the  books  are  agreed  on  this  point,  that  a  feoffment  to  a 
strano-er  without  a  consideration  raised  a  use  to  the  feoffor,  but  a  feoff- 
ment to  the  son  without  other  consideration  raised  no  use  by  implication 
to  the  father,  for  the  consideration  of  blood  settled  the  use  in  the  son, 
and  make  it  an  advancement.  How  can  this  court  justify  itself  to  the  world 
if  it  should  be  so  arbitrary  as  to  make  the  law  of  trusts  differ  from  the 
law  of  uses  in  the  same  case  ? 

3.  "  Again,  as  land  can  never  lineally  ascend,  so  neither  shall  the 
trust  of  land  lineally  ascend  where  it  is  left  to  the  presumption  of  law  ]{z) 
for  the  reason  why  laud  doth  not  lineally  ascend  is,  not,  as  my  Lord 
Coke  says,  from  natural  philosophy,  qxiia  gravia  deorsum,  but  from 
moral  philosophy,  quia  amor  dtscevdit  non  ascend  it,  and  from  divinity, 
because  fathers  are  bound  to  provide  for  their  children,  but  children  do 
not  provide  for  their  fathers  :  therefore,  when  a  father,  according  to  his 
duty,  has  provided  for  his  son,  it  were  hard  to  take  away  that  provision 
by  a  constructive  trust." 

"The  circumstance,"  said  Lord  Chief  Earon  Eyre,  "of  one  or  more 
of  the  nominees  being  a  child  or  children  of  the  purchaser,  is  held  to 
operate  by  rchiitting  the  resulting  trust ;  and  it  has  been  determined  in 
so  many  cases  that  the  nominee  being  a  child  shall  have  such  operation 
as  a  circibmstance  of  evidence,  that  it  would  be  disturbing  land-marks  if 
we  suffered  either  of  these  propositions  to  be  called  in  question; — 
namely.  That  such  circumstance  shall  rebut  the  resulting  trust;  and, 
That  it  shall  do  so  as  a  circumstance  of  evidence.  I  think  it  would  have 
been  a  more  simple  doctrine,  if  the  children  had  been  considered  as 
purchasers  for  valuable  consideration.  This  way  of  considering  it  would 
have  shut  out  all  the  circumstances  of  evidence  which  have  found  their 
r^-^OQI  ^^y  ^^^^  many  of  *the  cases,  and  would  have  prevented  some 
L  '^  -I  very  nice  distinctions,  and  not  very  easy  to  be  understood.  Con- 
sidering it  as  a  circumstance  of  evidence,  there  must,  of  course,  be  evi- 
dence admitted  on  the  other  side.  Thus  it  was  resolved  into  a  question 
of  intent,  which  was  getting  into  a  very  wide  sea  without  very  certain 
guides."(a) 

The  difficulties  arising  from  the  light  in  which  the  question  has  been 
thus  viewed  will  amply  appear  from  the  numerous  refined  distinctions 
upon  which  the  court  from  time  to  time  has  been  called  upon  to  adjudi- 
cate. 

1.  A  distinction  was  formerly  taken  where  the  child  was  an  infant  ;(h) 
for  a  parent,  it  was  said,  could  scarcely  have  intended  to  bestow  a  sepa- 
rate and  independent  provision  upon  one  utterly  incapable  of  undertaking 

(2)  This  ground  for  the  doctrine  no  longer  exists — since  the  father,  under  the 
late  Inheritance  Act,  takes  next  after  brothers  and  sisters. 
(a)  Dyer  v.  Dyer,  2  Cox,  94 ;  S.  C.  1  Walk.  Cop.  218. 
(6)  2  Freem.  128,  c.  151  ;  and  see  Binion  v.  Stone,  id.  169:  S.  C.  Nels.  68. 


OF    RESULTING    TRUSTS.  223 

the  management  of  it.  But  still  more  improbable  was  the  supposition 
that  an  infant  should  have  been  selected  as  a  trustee,(f)  and  accordingly 
the  notion  has  long  since  been  overruled  ;(t?)  nay,  the  infancy  of  the 
child  is  now  looked  upon  as  a  circumstance  particularly  favourable. (e) 

2.  It  was  objected,  that  a  reversionary/  estate,  from  the  uncertainty  of 
the  time  when  it  would  fall  into  possession,  was  not  such  a  kind  of  inte- 
rest as  a  parent  would  prudently  purchase  by  way  of  provision  for  a 
child;  but  mere  proximity  or  remoteness  of  the  enjoyment,  whether  the 
reversion  be  expectant  on  the  decease  of  the  parent  or  a  stranger,  has 
since  been  held  clearly  insufficient  to  countervail  the  general  rule.(/) 

3.  A  purchase  in  the  Joint  names  of  the  father  and  son  has  met  with 
objections  ;  "  for  this,"  observes  Lord  Hardwick,  "  does  not  answer  the 
purpose  of  an  advancement,  as  it  entitles  the  father  to  the  possession  of 
the  whole  till  a  division,  and  to  a  moiety  absolutely  even  after  a  division, 
besides  the  father's  *taking  a  chance  to  himself  of  being  a  sur-  p^^,  „ 
vivor  of  the  other  moiety  :  nay,  if  the  sou  die  during  his  minor-  L  "  J 
ity,  the  father  would  be  entitled  to  the  whole  by  survivorship,  and  the 
son  could  not  prevent  it  by  severance,  he  being  an  infant."(^)  But 
surely  no  improvidence  can  be  justly  charged  on  a  parent  who  so  settles 
his  estate,  that  if  the  son  die  a  minor  it  shall  revert  to  himself;  that  until 
the  marriage  of  the  son  or  other  pressing  occasion,  the  father  and  son 
shall  possess  an  equal  interest  during  their  joint  lives,  with  the  right  of 
survivorship  as  to  the  whole  ;  that  the  son  shall  have  the  power,  when 
necessary,  of  settling  one  moiety  of  the  estate,  but  shall  leave  the  other 
moiety  to  his  parent.  Whatever  opinion  may  be  entertained  as  to  the 
principle,  the  doubts  above  expressed  by  Lord  Hardwicke  can  scarcely 
be  maintained  in  opposition  to  repeated  decisions. (/i)  A  purchase  in  the 
joint  names  of  the  son  and  a  stranger  is  less  favorable  to  the  supposition 
of  an  intended  advancement  ;(i)  but  even  here  the  right  of  the  child  is 
now  indisputably  established.^^)  However,  the  advancement  cannot  be 
more  extensive  than  the  legal  estate  in  the  child ^(Pj  and  therefore  the 
stranger,  quatemts  the  legal  estate  vested  in  him,  must  hold  upon  trust 
for  the  father. («i) 

4.  It  is  the  custom,  in  many  manors,  to  make  grants  for  lives  succes- 
sive. Should  a  father  pay  the  fine  upon  a  grant  to  himself  and  his  two 
sons,  shall  this  be  held  an  advancement  or  a  trust  ?  Upon  the  difficulty 
of  this  case.  Lord  Chief  Baron  Eyre  has  remarked,  "When  the  lessees 

(c)  See  supra,  p.  39. 

{d)  Lamplugh  v.  LampluEch,  1  P.  W.  Ill ;  Lady  Gorge's  case,  cited  2  Sw.  600  ; 
Skeats  v.  Skeats,  2  Y.  &  C.  Ch.  Ca.  9 ;  Christy  v.  Courtenay,  13  Beav.  96 ;  Collin- 
son  V.  CoUinson,  3  De  G.  M.  &  G.  403  ;  Mumma  v.  Mumrna,  2  Vera.  19  ;  Finch 
V.  Finch,  15  Ves.  43,  &c. 

(e)   Fearne's  P.  W.  327. 

(/)  RumboU  v.  Rumboll,  2  Ed.  17,  per  Lord  Henley;  Finch  v.  Finch,  15  Ves. 
43  ;  Murless  v.  Franklin,  1  Sw.  13. 

{g)  Stileman  v.  Ashdown,  2  Atk.  480 ;  and  see  Pole  v.  Pole,  1  Ves.  76. 

{h)  Scroope  v.  Scroope,  1  Ch.  Ca.  27;  Back  v.  Andrews,  2  Vern.  120;  Grey  v. 
Grey,  2  Sw.  599,  and  cases  there  cited. 

(i)  See  Hayes  v.  Kingdonie,  1  Vern.  34. 

{k)  Lamplugh  v.  Lamplugh,  1  P.  "W.  Ill;  Kingdome  v.  Bridges,  2  Vern.  67. 

(l)  See  Rumboll  v.  Rumboll,  1  Ed.  17. 

{m)  See  Kingdome  v.  Bridges,  2  Vern.  67;  Lamplugh  v.  Lamplugh,  1  P.  W.  112, 


094  LEWIN    OX    THE    LAW    OF    TKUSTS,    ETC. 

are  to  take  snccessivh,  it  is  said,  that  as  the  father  cannot  take  the  whole 
in  his  name,  but  must  insert  other  names  in  the  lease,  then  the  children 
shall  be  trustees  for  the  father.  And  to  be  sure,  if  the  circumstance  of 
the  child  being  the  nominee  is  not  decisive  the  other  way,  there  is  a  great 
deal  of  weight  in  this  observation.     There  may  be  many  prudential  rea- 

\-.-,  sons  for  putting  in  the  life  *of  a  child  in  preference  to  any  other 
L  ^  J  person ;  and  if  in  that  case  it  is  to  be  collected  from  circum- 
stances whether  an  advancement  was  meant,  it  will  be  difl&cult  to  find 
such  as  will  support  that  idea.  To  be  sure,  taking  the  estate  in  the  name 
of  a  child,  which  the  father  might  have  taken  in  his  own,  affords  a  strong 
ar<^umeDt  of  such  an  intent ;  but  where  the  estate  must  necessarily  be 
taken  to  him  in  succession,  the  inference  is  very  different. "(71)  And  in 
accordance  with  this  reasoning  was  decided  the  case  of  Dickinson  v. 
Shaw  -Jo)  but  in  Dyer  v.  Dyer(p)  the  notion  was  overruled,  as  savouring 
too  much  of  refinement ;  and  so  at  the  present  day  it  must  be  considered 
as  settled. (5) 

5.  It  may  happen,  that  the  child  in  whose  name  the  purchase  is  taken 
may  have  been  already  provided  for,  a  circumstance  of  very  considerable 
weight  in  rebutting  the  presumption  of  further  advancement.  "The 
rule  of  equity,"  said  Lord  Chief  Baron  Eyre,  "  as  recognized  in  other 
cases,  is,  that  the  father  is  the  only  judge  on  the  question  of  a  son's  pro- 
vision, and  therefore  the  distinction  of  the  son  being  provided  for  or  not 
is  not  very  solidly  taken. "(/•)  However,  the  distinction  has  been  relied 
upon  in  several  cases, fs)  and  has  been  repeatedly  recognised  by  the  high- 
est authorities. (?)  At  the  same  time,  it  must  be  noticed  that  the  prior 
advancement  of  the  child  has  always  been  accompanied  with  some  addi- 
tional circumstance  that  tended  to  strengthen  the  presumption  that  no 
further  provision  was  designed  )(u\  and  Lord  Loughborough  laid  down 
the  general  rule  to  be,  that  a  purchase  made  by  a  father  in  the  name  of 
a  son,  already  fully  advanced  and  established  by  him,  not  urns,  but  might 
be  a  trust  for  the  father. (r) 

r*9191  ^^^  '^^  ^^^^  ^y  Lord  Chief  Baron  Gilbert,  that  "if  a  father 
'-"'"'-'  purchase  in  the  name  of  a  son  iclio  is  of  full  age,  v:liich  hy  our 
law  is  an  emancipation  out  of  the  pioxoer  of  the  father  there  if  the  father 
take  the  profits,  &c.,  the  son  is  a  trustee  for  the  father."(?i')  But  for  this 
opinion  there  appears  to  be  not  the  slightest  ground. (x)  The  provision 
must  exist  not  by  a  fiction  of  law  but  hona  fide  and  substantially;  as, 

(n)  Dyer  v.  Dyer,  2  Cox,  95 ;  S.  C.  1  Watk.  Cop.  221. 

(0)  Cited  2  Cox,  95  ;  1  Watk.  Cop.  221. 

[p)  2  Cox,  92  ;  1  Watk.  Cop.  216. 

[q)  Swift  T.  Davis,  8  East,  354,  note  (a) ;  Fearne's  P.  W.  327  ;  Skeats  v.  Skeats, 
2  Y.  &  C.  Ch.  Ca.  9. 

[r)  Dyer  v.  Dyer,  2  Cox,  94 ;  S.  C.  1  Watk.  Cop.  220. 

(«)  Elliot  V.  Elliot,  2  Ch.  Ca.  231 ;  Pole  v.  Pole,  1  Yes.  76. 

[t)  See  Grey  v.  Grey,  2  Sw.  600  ;  S.  C.  Finch,  341  ;  Lovd  v.  Read,  1  P.  W.  608; 
Redington  v.  Redington,  3  Ridg.  190  ;  Gilb.  Lex  Prat.  271. 

(m)  Pole  V.  Pole,  Elliot  v.  Elliot,  ubi  supra  ;  and  see  Grey  v.  Grey,  2  Sw.  600 ; 
Gilb.  Lex  Prfet.  271. 

{v)  Redington  v.  Redington,  3  Ridg.  190 ;  and  see  Sidmouth  v.  Sidmouth,  2 
Beav.  456. 

(w)  Lex  Prset.  271. 

(x)  In  Grey  v.  Grey,  (ubi  supra),  for  instance,  the  son  was  of  age. 


OF    RESULTING    TRUSTS.  225 

said  Lord  Nottingham,  "  if  the  son  be  married  in  his  father's  lifetime, 
and  with  his  father's  consent,  and  a  settlement  be  thereupon  made, 
whereby  the  son  appears  to  be  fully  advanced,  and  in  a  manner  emanci- 
pated."(y)  A  provision  in  part  will  not  have  the  effect  of  rebutting  the 
presumption  of  advancement  ;{£)  and  the  settlement  of  a  reversionary 
estate  upon  the  son  will  not  be  deemed  a  provision,  for  he  might  starve 
before  it  fell  into  possession. (a) 

6.  Suppose  the  father  continues,  after  the  purchase,  in  the  perception 
of  the  rents  and  profits,  and  exerts  other  acts  of  ownership,  then,  if  the 
son  be  an  infant,  it  is  said,  as  the  parent  is  the  natural  guardian  of  the 
child,  the  perception  of  the  profits  or  other  exercise  of  dominion  shall  be 
referred  to  that  ground,  and  the  right  of  the  son  shall  not  be  prejudiced, 
and  so  in  numerous  cases  the  point  has  been  adjudged  ;{h\  and  it  will  not 
vary  the  ease  if  the  son  sign  receipts  in  the  name  of  the  father,  for  during 
his  minority  he  could  give  no  other  receipts  that  would  discharge  the 
tenants  who  hold  by  lease  from  the  father. (c)  Lord  Chief  Baron  Eyre 
has  expressed  himself  dissatisfied  with  this  reasoning  in  reference  to  the 
guardianship,  and  puts  the  question,  <'  If  the  father  take  the  rents  as 
guardian  of  his  son,  would  the  court  sustain  a  bill  by  the  son  against  the 
father  for  these  rents  ?  He  should  think  it  pretty  difiicult  to  succeed  in 
such  a  bill." (t?)  Lord  Nottingham  has  referred  *the  decisions  r*9-|qn 
to  a  higher  ground.  "  Some,"  he  said,  "  have  taken  the  differ-  L  "^  J 
ence,  that  where  the  fiither  has  colour  to  receive  the  rents  as  guardian, 
there  perception  of  profits  is  no  evidence  of  a  trust :  otherwise  it  would 
be  if  the  perception  of  profits  were  without  any  such  colour.  Plainly  the 
reason  of  the  resolutions  stands  not  upon  the  guardianship,  but  upon  the 
presumptive  advancement,  for  a  purchase  in  the  name  of  an  infant 
stranger  with  perception  of  profits,  &c.,  will  be  evidence  of  a  trust. "(e) 

7.  Suppose  the  father  purchases  in  the  name  of  a  son  who  is  adult,  and 
then,  without  contradiction  from  the  son,  takes  the  rents  and  profits,  and 
exerts  other  acts  of  ownership ;  even  here  it  has  been  determined  the 
right  of  the  son  will  prevail.  A  stronger  instance  can  hardly  be  con- 
ceived than  occurred  in  the  very  leading  case  of  Grey  v.  Grey,(/)  before 
Lord  Nottingham.  We  have  his  lordship's  own  manuscript  of  this  case, 
and  the  circumstances  are  thus  stated: — '^The  evidence  to  prove  this 
purchase  in  the  name  of  the  son  to  be  a  trust  for  the  father  consists  of, 
1st,  father  possessed  the  money;  2dly,  received  the  profits  twenty  years; 
odly,  made  leases;  4thly,  took  fines;  5thly,  enclosed  part  in  a  park; 
6thly,  built  much  ;  7thly,  provided  materials  for  more ;  Sthly,  directed 
Lord  Chief  Justice  North  to  draw  a  settlement ;  9thly,  treated  about  the 

(y)  Grey  v.  Grey,  2  Sw.  600. 

{z)  lb.;  Redington  v.  Redington,  3  Ridg.  190. 

[a)  Lamplugh  v.  Lamplugb,  1  P.  "W.  111. 

\b)  Gorge's  case,  cited  Cro.  Car.  550,  and  2  Sw.  600  ;  Mumma  v.  Mumma,  2 
Vern.  19;  Taylor  v.  Taylor,  2  Atk.  386;  Lamplugh  v.  Lamplugh,  1  P.  W.  Ill; 
aud  see  Stileman  v.  Ashdown,  2  Atk.  480 ;  Loyd  v.  Read,  1  P.  W.  608  ;  Christy 
V.  Courtenay,  13  Bear.  96. 

(c)  Taylor  v.  Taylor,  1  Atk.  336. 

{d)  Dyer  v.  Dyer,  2  Cox,  94;  S.  C.  1  Watk.  220. 

(e)  Grey  v.  Grey,  2  Sw.  600.  (/)  2  Sw.  594;  Finch,  333. 


226       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

sale  of  it :"((/)  yet  for  all  this,  it  was  decided,  after  long  and  mature 
deliberation,  that  the  consideration  of  blood  and  affection  was  so  predo- 
minant, that  the  father's  perception  of  rents  and  profits,  or  making  leases, 
or  the  like  acts,  which  the  son,  in  good  manners,  did  not  contradict, 
could  not  countervail  it.(7i)'  The  propriety  of  this  decision,  upon  prin- 
ciple independently  of  authority,  has  been  called  into  question.  "  Admit- 
ting,'' it  is  said,  "  that  they  are  subsequent  acts,  whereas  the  intention 
of  the  father  in  taking  the  purchase  in  the  son's  name  must  be  proved 
by  concomitant  acts,  yet  they  are  pretty  strong  acts  of  ownership,  and 
assert  the  right,  and  coincide  with  the  possession  and  enjoyment."(Q 
*It  might  perhaps  be  successfully  contended,  that  Lord  Notting- 
L  "^  J  ham's  determination  was  founded  upon  the  more  enlarged  view 
of  the  subject  in  respect  even  of  j)rtnc*)j)?e;  however,  the  point  must  at 
the  present  day  be  considered  as  settled  at  least  upon  authority,  if  any 
point  can  be  considered  as  settled  after  repeated  decisions. (Z:) 

The  advancement  of  the  son  is  a  mere  question  of  intention,  and  there- 
fore facts  antecedent  to  or  contemjxjraneous  icith  the  purchase,(^)  or  so 
immediately/  afferii  as  to  constitute  part  of  the  same  transaction,(?rt)  may 
properly  be  put  in  evidence  for  the  purpose  of  rebutting  the  presumption. 
Thus  it  will  not  be  held  an  advancement,  if,  on  a  grant  of  copyholds  to 
a  father  and  his  son  for  their  lives  sxiccessive,  the  father  at  the  same  court 
surrender  the  copyholds  to  the  use  of  his  will,(«)  or  obtain  a  license 
from  the  lord  to  lease  for  years,(o)  or  take  possession  by  some  overt  act 
immediately  consequential  upon  the  purchase. (7)) 

So  the  father  may  prove  a  parol  declaration  of  trust  by  himself,  either 
before  or  at  the  time  of  the  purchase,  not  that  it  operates  by  way  of  de- 
claration of  trust  (for  the  Statute  of  Frauds  would  interfere  to  prevent 
it ;)  but  as  the  trust  would  result  to  the  father,  were  it  not  rebutted  by 
the  sonship  as  a  circumstance  of  evidence,  the  father  may  counteract 
that  circumstance  by  the  evidence  arising  from  his  parol  declaration. 
l-^_^-  *0f  course  the  father  cannot  defeat  the  advancement  by  any 
L        J  subsequent  declaration  of  his  intention. (§') 

(g)  2  Sw.  596.  (A)  See  2  Sw.  599. 

(i)  Dyer  v.  Dyer,  2  Cox,  95  ;  S.  C.  1  Walk.  Cop.  220. 

(k)  Woodman  v.  Morrel,  2  Freem.  32,  reversed  on  the  re-hearing  (see  note  by 
Hoveuden)  ;  Shales  v.  Shales,  ib  252  ;  Sidmouth  v.  Sidmouth,  2  Beav.  447  ;  and 
see  Elliot  v.  Elliot,  231  ;  but  see  Loyd  v.  Read,  1  P.  W.  607  ;  Redington  v.  Red- 
ington,  3Ridg.  190;  Murless  v.  Franklin,  1  Sw.  17  ;  Scawin  v.  Scawin,  1  Y.  &  C. 
Ch.  Ca.  65. 

(l)  See  Collinson  v.  CoUinson,  3  De  Gex,  Mac.  &  Gord.  409  ;  Murless  v.  Frank- 
lin, 1  Sw.  17,  19;  Sidmouth  v.  Sidmouth,  2  Beav.  447  ;  Loyd  v.  Read,  1  P.  W. 
607 ;  Taylor  v.  Alston,  cited  2  Cox,  96,  1  Watk.  Cop.  223  ;  Redington  v.  Reding- 
ton, 3  Ridg.  177;  Grey  v.  Grey,  2  Sw.  594;  Rawleigh's  case,  cited  Hard.  497; 
Baylis  v.  Newton,  2  Vern.  28  ;  Shales  v.  Shales,  2  Freem.  252  ;  Scawin  v.  Scawin, 
1  Y.  &  C.  Ch.  Ca.  65 ;  Christy  v.  Courtenay,  13  Beav.  96. 

(m)  Redington  v.  Redington,  3  Ridg.  196,  per  Lord  Loughborough. 

(n)  Prankerd  v.  Prankerd,  1  S.  &  S.  1. 

(0)  Swift  v.  Davis,  8  East,  354,  note  {a). 

{p)  Lord  Eldon  could  scarcely  have  meant  more  than  this,  when  he  observed, 
"Possession  taken  by  the  father  at  the  time  would  amount  to  such  evidence." 
Murless  v.  Franklin,  1  Sw.  17. 

(y)  See  Elliot  v.  Elliot,  2  Ch.  Ca.  231  ;  Finch  v.  Finch,  15  Ves.  51 ;  Woodman 
v.  Morrell,  2  Freem.  33  ;  Birch  v.  Blagrave,  Amb.  266  ;  Gilb.  Lex  Prait.  271 ;  Sid- 


OF    RESULTING    TRUSTS.  227 

On  the  other  hand,  the  son  may  produce  parol  evidence  to  prove  the 
intention  of  advancement,(r)  and  a  fortiori  such  evidence  is  admissible 
on  his  side,  as  it  tends  to  support  both  the  legal  operation  and  equitable 
presumption  of  the  instrument. ^s)  And  it  seems  the  subsequent  acts  and 
declarations  of  the  father  may  be  used  against  him  by  the  son,  though 
they  cannot  be  used  in  his  favour, {t^  but  the  subsequent  acts  or  decla- 
rations of  the  son  cannot  be  used  against  him  by  the  father ;  for  the  ques- 
tion is,  what  did  the  father  mean  by  the  purchase  ?  Nothing,  there- 
fore, that  the  son  could  do  or  say  (short  of  a  disclaimer)  can  alFect  his 
interest,  except,  indeed,  he  was  a  party  to  the  purchase,  and  his  con- 
struction of  the  transaction  may  be  taken  as  an  index  to  the  intention  cf 
the  father,  (w) 

From  the  manner  in  which  the  court  has  disposed  of  the  several  dis- 
tinctions we  have  been  considering,  one  general  principle  is  to  be  extracted 
applicable  to  every  case.  "  We  think,"  said  Chief  Baron  Eyre,  "  that 
reasons  which  partake  of  too  great  a  degree  of  refinement  should  not  pre- 
vail against  a  rule  of  property,  which  is  so  well  established  as  to  become 
a  land-mark,  and  which,  whether  right  or  wrong,  should  be  carried 
throughout  j'Vz;)  and  Lord  Eldon  to  the  same  eifect  observed,  <^  that  the 
court  in  Dyer  v.  Dyer  meant  to  establish  this  principle,  that  the  purchase 
is  an  advancement  prima  facie,  and  in  this  sense,  that  this  principle  of 
law  and  presumption  is  not  to  be  frittered  away  by  mere  refinements. '7?6j 

*The  doctrine  of  advancement  has  been  applied  to  the  case  of  ^^^^  p-. 
even  an  illegitimate  son  ;{x\  for  it  is  said  the  principle  is,  that  a  L  "  J 
father  is  under  a  moral  duty  to  provide  for  his  child,  and  as  the  obliga- 
tion extends  to  the  case  of  an  illegitimate  child,  he  is  equally  entitled  to 
the  benefit  of  the  presumption. (y) 

It  has  been  said  that  the  presumption  is  not  so  strong  in  favour  of  a 
daughter  as  of  a  son,  because  daughters  are  not  generally  provided  for  by 
a  settlement  of  real  estate  •,(z\  but  the  distinction  has  been  contradicted 
by  more  than  one  decision,  and  does  not  now  exist. («)  Advancement 
will  be  presumed  in  the  case  of  a  wife,(b'j  and  the  presumption  will  be 

mouth  T.  Sidmouth,  2  Beav.  456 ;  Skeats  v.  Skeats,  2  Y.  &  C.  Ch.  Ca.  9 ;  Christy 
V.  Courtenay,  13  Beav.  96. 

(r)  Taylor  v.  Alston,  cited  2  Cox,  96,  1  Watk.  Cop.  223  ;  Beckford  v.  Beckford, 
Lofft,  490. 

(s)  See  Taylor  v.  Taylor,  1  Atk.  386;  Lamplugh  v.  Lamplugh,  1  P.  W.  113  ; 
Redington  v.  Redington,  3  Ridg.  182,  195. 

(t)  See  Redington  v.  Redington,  3  Ridg.  195,  197;  Sidmouth  v.  Sidmouth,  2 
Beav.  455. 

(u)  See  Murless  v.  Franklin,  1  Sw.  20  ;  Pole  v.  Pole,  1  Ves.  76  ;  but  see  Sid- 
mouth V.  Sidmouth,  2  Beav.  455  ;  Scawin  v.  Scawin,  1  Y.  &  C.  Ch.  Ca.  65. 

(v)  2  Cox,  98  ;   1  Watk.  Cop.  226.  (w)  Finch  t.  Finch,  15  Ves.  50. 

(x)  Beckford  v.  Beckford,  Lofift,  490 ;  Fearne's  P.  W.  327. 

(y)  See  Fonb.  Eq.  Tr.  123,  note  {i),  4th  ed. 

(z)  Gilb.  Lex  Prset.  272. 

(a)  Lady  Gorge's  case,  cited  Cro.  Car.  550,  2  Sw.  600  ;  Jennings  v.  Selleck,  1 
Vern.  467;  and  see  Woodman  v.  Morrel,  2  Freem.  33;  Clarke  v.  Danvers,  1  Ch. 
Ca.  310. 

(b)  Kingdome  v.  Bridges,  2  Vern.  67  ;  Christ's  Hospital  v.  Budgin,  id.  683  ; 
Back  V.  Andrews,  id.  120  ;  Glaister  v.  Hewer,  8  Ves.  199,  per  Sir  W.  Grant ;  Rider 
V.  Kidder,  10  Ves.  367,  per  Lord  Eldon ;  Gilb.  Lex  Pra?t.  272. 


228       LEWIN  0^-  THE  LAW  OF  TRUSTS,  ETC. 

tlie  same  where  the  purchase  is  made  in  the  name  of  a  grand-child,(c)  of 
a  nephew,(cZ)  and,  it  is  conceived,  even  of  a  stranger  in  blood,(e)  towards 
whom  the  person  purchasing  has  placed  himself  "  i'/i  loco  parentis." 

Where  the  purchase  is  held  to  be  an  advancement,  and  the  purchase- 
money  has  not  been  paid,  it  will  be  a  charge  on  the  father's  assets  as  an 
ordinary  debt.(/) 

Of  course  the  doctrine  of  advancement  applies  to  personal  as  well  as 
real  estate;  as  where  a  father  purchases  stock  in  the  name  of  his  son. ((7) 

In  a  recent  case,  where  moneys  were  lent  out  in  the  name  of  a  person 
who  was  both  son  and  solicitor  of  the  owner  of  the  sums  lent,  it  was  held 
that  the  particular  relation  of  solicitor  prevented  the  application  of  the 
general  rule. (A) 


[*217]  *CHAPTER   IX. 

OF  CONSTRUCTIVE  TRUSTS. 

A  constructive  trust  is  raised  by  a  court  of  eqhity,  wherever  a  person, 
clothed  icith  a  fidxiciary  character,  gains  some  ^^ersonal  advantage  hy 
availing  himself  of  his  situation  as  trustee  ;{^i^  for  as  it  is  impossible  a 
trustee  should  be  allowed  to  make  a  profit  by  his  office,  it  follows,  that 
so  soon  as  the  advantage  in  question  is  shown  to  have  been  acquired 
through  the  medium  of  the  trust,  the  trustee,  however  good  a  legal  title 
he  may  have,  will  be  decreed  in  equity  to  hold  for  the  benefit  of  his  ces- 
tui que  trust. 

The  most  common  instance  of  a  constructive  trust  occurs  in  the 
renewal  of  leases ;  the  rule  beiijg,  that  if  a  trustee,(Z:)  or  executor,^  or 
even  an  executor  de  son  tort,{ni\  renew  a  lease  in  his  own  name,  he  will 

(c)  Ebrand  v.  Dancer,  2  Ch.  Ca.  26 ;  and  see  Lojd  v.  Read,  1  P.  W.  607 ;  Cur- 
rant V.  Jago,  1  Coll.  2G5,  note  (c). 

(d)  Currant  v.  Jago,  1  Coll.  261. 

(e)  See  the  analogous  class  of  cases  in  reference  to  double  portions,  Powys  v. 
Mansfield,  3  M.  &  Cr.  359,  &c. 

(/)  Redington  v.  Redington,  3  Ridg.  106,  see  200. 

{g)  Sidmouth  v.  Sidmouth,  2  Beav.  447. 

\h)  Garrett  \.  Wilkinson,  2  De  Gex  &  Sm.  244. 

(j)  As  to  the  meaning  of  the  term  "  constructive  trust,"'  and  the  branch  of  such 
trusts,  reserved  for  description  in  a  later  chapter,  see  page  140,  supra,  and  page 
228,  infra. 

[k)  Griffin  v.  Griffin,  1  Sch.  &  Lef.  354,  per  Lord  Redesdale  ;  Pickering  v.  Vowles, 

1  B.  C.  C.  198,  per  Lord  Thurlow;  Pierson  v.  Shore,  1  Atk.  480,  per  Lord  Hard- 
•wicke  ;  Nesbitt  v.  Trcdennick,  1  B.  &  B.  46,  per  Lord  Manners  ;  Turner  v.  Hill,  11 
Sim.  13,  per  Sir  L.  Shadwell. 

{I)  Walley  v.  Whalley,  1  Vern.  484 ;  Holt  v.  Holt,  1  Ch.  Ca.  190  :  Abney  v.  Miller, 

2  Atk.  597,  per  Lord  Hardwicke;  Killick  v.  Flexney,  4  B.  C.  C.  161 ;  Pickering  v. 
Vowles,  1  B.  C.  C.  198,  per  Lord  Thurlow;  Luckin  v.  Rushworth,  Finch.  392; 
Anon.  2  Ch.  Ca.  207 ;  and  see  Mulvany  v.  Dillon,  1  B.  &  B.  409  ;  Fosbrooke  v. 
Balguy,  1  M.  &  K.  226  ;  Owen  v.  Williams,  Amb.  734  ;  Nesbitt  v.  Tredennick,  1 
B.  &  B.  40,  perXord  Manners. 

(m)  Mulvany  v.  Dillon,  1  B.  &  B.  409. 


OF    CONSTRUCTIVE    TRUSTS.  229 

be  deemed  in  equity  to  be  a  trustee  for  those  interested  in  the  original 
term. 

The  leading  authority  upon  this  subject  is  Sandford  v.  Keech,  com- 
monly called  the  Rumford  Market  Case.(?ft)  A  lessee  of  the  profits  of  a 
market  had  devised  to  a  trustee  for  an  infant,  and  the  trustee  applied 
for  a  renewal  on  behalf  of  the  infant,  which  was  refused,  on  the  ground 
that  there  could  *be  no  distress  of  the  profits  of  a  market,  but  j-^.^..  o-j 
the  remedy  must  rest  singly  in  covenant,  of  which  an  infant  was  L  "  J 
incapable.  Upon  this  the  trustee  took  a  lease  for  the  benefit  of  himself; 
but  Lord  King  said,  "  I  must  consider  this  a  trust  for  the  infant ;  for  I 
very  well  see,  if  a  trustee,  on  the  refusal  to  renew,  might  have  a 
lease  to  himself,  few  trust  estates  would  be  renewed  to  cestui  que  use. 
Though  I  do  not  say  there  is  fraud  in  this  case,  yet  he  should  rather 
have  let  it  run  out  than  have  had  the  lease  to  himself.  This  may  seem 
hard,  that  the  trustee  is  the  only  person  of  all  mankind  who  might  not 
have  the  lease,  but  it  is  very  proper  that  rule  should  be  strictly  pursued, 
and  not  in  the  least  relaxed ;  for  it  is  very  obvious  what  would  be  the 
consequence  of  letting  trustees  have  the  lease  on  refusal  to  renew  to  ces- 
tui que  use."  And  so  decreed  that  the  lease  should  be  assigned  to  the 
infant. 

Upon  the  same  principle,  if  a  person  possessing  only  a  partial  interest 
in  a  lease,  as  a  tenant  for  life(?i)  (though  with  an  absolute  power  of 
appointment,  but  which  he  does  not  exercise,)^©^  a  mortgagee, (p)  de- 
visee subject  to  debts  and  Iegacies(2')  or  to  an  anuuity,^?-^  a  joint- 
tenant,(s)  or  partner,(^)  renew  the  term  upon  his  own  account,  he  shall 
hold  for  the  benefit  of  all  parties  interested  in  the  old  lease ;  for  in  con- 
sideration of  equity  the  subject  of  the  settlement  is  not  only  the  lease, 
but  also  the  right  of  renewal ;  and  no  person  taking  only  a  limited 
interest  can  avail  himself  of  the  situation  in  *which  the  settle-  p^.^,p-. 
ment  has  placed  him  to  obtain  a  disproportionate  advantage  in  L  "^  J 
derogation  of  the  rights  of  other  equal  claimants. 

Even  where  a  testator  was  possessed  of  leaseholds,  and  devised  all  his 
interest  therein  to  A.  for  life,  remainder  to  B.,  and  the  lease  having 
expired  in  the  testator's  lifetime,  he  was  at  his  death  a  mere  yearly 
tenant,  it  was  held  that  A.,  having  renewed  the  lease,  must  hold  it  upon 

(m)  Sel.  Ch.  Ca.  61. 

(w)  Eyre  v.  Dolphin,  2  B.  &  B.  290  ;  Rawe  v.  Chichester,  Amb.  Ylo;  Coppin  v. 
Fernyhough,  2  B.  C.  C.  291;  Pickering  v.  Vowles,  1  B.  C.  C.  197;  Taster  v.  Mar- 
riott, Amb.  668;  Owen  v.  Williams,  id.  T34;  James  v.  Dean,  11  Ves.  383;  S.  C. 
15  Ves.  236;  Kempton  v.  Packman,  cited  7  Ves.  176;  Giddings  v.  Giddings,  3 
Russ.  241 ;  Nesbitt  v.  Tredennick,  1  B.  &  B.  46,  per  Lord  Manners  ;  Crop  v.  Norton, 
9  Mod.  233 ;  Buckley  v.  Lananze.  LI.  &  G.  Rep.  t.  Plunket,  327 ;  Tanner  v.  Elwor- 
thy,  4  Beav.  487  ;  Waters  v.  Bailey,  2  Y.  &  C.  Ch.  Ca.  219. 

(o)  Brookman  v.  Hales,  2  V.  &  B.  45. 

(p)  Rushworth's  case,  Freem.  13;  Nesbitt  v.  Tredennick,  1  B.  &  B.  4G,  per  Lord 
Manners. 

(g)  Jackson  t.  Welsh,  LI.  &  G.  Rep.  t.  Plunket,  346. 

(r)  Winslow  v.  Tighe,  2  B.  &  B.  195;  Stubbs  v.  Roth,  id.  548;  and  see  Webb 
V.  Lugar,  2  Y.  &  C.  247  ;  Jones  v.  Kearney,  1  Conn.  &  Laws.  34. 

(s)  Palmer  v.  Young,  1  Vern.  276. 

(t)  Featherstonhaugh  v.  Fenwick,  17  Ves.  298;  Ex  parte  Grace,  1  Bos.  &  Pul. 
376. 


230  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

the  limitations  of  the  will,  for  the  yearly  tenancy  was  an  interest  capable 
of  transmission  by  devise ;  and  the  tenant  for  life  could  not,  by  acting 
upon  the  good-will  that  accompanied  the  possession,  get  the  exclusive 
benefit  of  a  more  durable  term,(M) 

But  if  a  person  devise  a  lease  in  strict  settlement,  and  the  lease  expire 
in  his  lifetime,  and  at  the  time  of  his  death  he  is  merely  tenant  at  will, 
or  at  sufferance,  then,  if  the  executor  renew,  he  is  not  a  trustee  for  the 
devisees,  for  as  there  was  no  interest  upon  which  the  will  could  operate, 
there  was,  in  fact,  no  devise. (y)  And  so,  where  a  testator  possessed 
leaseholds  for  years,  and  was  in  possession  of  other  lands  without  title 
under  the  mistaken  impression  that  they  were  contained  in  the  lease,  and 
devised  the  lands  he  held  upon  lease  to  A.,  his  executrix,  for  life,  with 
remainder  over,  and  A.  obtained  a  lease  of  the  lands  not  passed  by  the 
will;  it  was  ruled  that  no  trust  attached  upon  the  term  in  favour  of  the 
remainderman. (w)  But  although  the  devisees  cannot  claim  in  these 
cases,  the  executor  himself  will  not  be  allowed  to  keep  the  beneficial 
interest.  "  The  question,"  said  Lord  Eldon,  ''  is  new,  whether  an  exe- 
cutrix, dealing  with  the  opportunities  which  she  derives  by  her  succes- 
sion, without  title  to  the  estate  (which)  a  tenant  by  sufferance  or  at  will 
had  held,  is  a  trustee,  for  the  devisee,  who  cannot  say  he  took  an  interest 
under  the  will,  or  whether  it  is  to  be  said  only  that  the  advantage  she 
made  of  those  opportunities  should  be  for  the  general  estate.  The  result 
is  this  :  I  think  it  is  impossible  she  could  hold  it  for  herself.  Supposing 
r*2201  ^'^°*''^^^  person,  not  the  executrix,  was  residuary  legatee,  the 
L  """  J  ^question  I  should  think,  would  be  in  favour  of  that  residuary 
legatee,  (the  renewal)  being  a  casual  advantage  from  the  dealing  of  the 
executrix."  (j:) 

Neither  can  an  agent,(?/)  or  other  person  acting  under  the  authority 
of  a  trustee,  executor  or  tenant  for  life,  renew  for  his  own  benefit ;  for 
''  there  is  nothing,"  said  Lord  Hardwicke,  "  the  court  has  more  adhered 
to  than  that,  if  the  tenant,  or  any  person  claiming  from  the  tenant,  apply 
to  renew,  whether  the  new  lease  be  granted  to  the  same  person  or  any 
other,  if  the  lessee  in  the  new  take  in  the  right  of  him  who  ivas  the  oicner 
of  the  old  lease,  he  must  take  subject  to  all  the  equity  to  which  the  ori- 
ginal lessee  was  liable."(^;) 

And  if,  instead  of  taking  a  renewal  himself,  the  trustee,  executor,  or 
tenant  for  life,  dispose  of  the  right  of  renewal  for  a  valuable  considera- 
tion, the  purchase-money  will  be  subjected  in  equity  to  the  trusts  of  the 
settlement;  for  if  a  person  cannot  appropriate  the  renewal  to  himself, 
the  court  will  not  suffer  him  to  sell.fa) 

And  in  the  preceding  cases  the  rule  of  equity  will  not  be  varied, 

(m)  James  v.  Dean,  11  Ves.  383 ;  S.  G.  15  Yes.  236. 
M  See  James  v.  Dean,  11  Ves.  391,  392. 
[w)  Rawe  v.  Chichester,  Amb.  715. 

{x)  James  v.  Dean,  11  Ves.  392,  per  Lord  Eldon.  In  Rawe  v.  Chichester,  ubi 
supra,  the  executrix  was  also  residuary  legatee. 

Twiul  ^"^'^■T;  ^"'^'''  ^  ^''^-  ^  ^^^-  ^^3  fand  see  Edwards  v.  Lewis,  3  Atk.  538 ; 
Mulvany  v.  Dillon,  1  B.  &  B.  417. 

[z)  Edwards  v.  Lewis,  3  Atk.  538.  (a)  Owen  v.  Williams,  Amb.  734. 


OF    CONSTRrCTIVE    TRUSTS.  231 

because  the  lease  bad  not  customarily  been  renewed,(Z/)  or  the  period  of 
the  old  lease  had  actually  expired, (c)  or  the  renewal  was  for  a  different 
term,  or  at  a  different  rent,(f?)  or  instead  of  a  chattel  lease,  was  for 
lives, (e)  or  other  lauds  were  demised  not  comprised  in  the  original 
lease,(/)  or  the  landlord  refused  to  renew  with  the  cestui  qtie  triist,((j) 
or  the  co-trustees  refused  to  concur  in  a  renewal  for  the  cestui' s  que  trust 
benefit,(7i)  *or  the  lessee,  having  purchased  the  immediate  rever-  r*221"| 
sion,  took  the  renewal  from  the  superior  landlord. (j)  L 

But  where  a  lessee  of  lands  in  Ireland  charged  a  lease  with  a  jointure, 
and  then  mortgaged  it  to  Newcomen,  and  again  to  Nesbitt,  and  after- 
ward the  rent  falling  in  arrear,  the  landlord  recovered  possession  upon 
ejectment,  and  the  lessee  allowed  six  months,  (the  period  of  redemption 
by  the  lessee  fixed  by  the  statute)  to  pass  without  tendering  the  rent, 
fines,  and  costs,  and  Nesbitt  (who,  as  mortgagee,  had  three  months  longer 
to  redeem  under  the  statute,)  sent  notice  to  the  lessee  that  he  would  not 
redeem ;  but  that  if  the  lessee  himself  did  not  proceed,  he  should  make 
the  best  bargain  he  could  with  the  landlord,  and  then  offered  to  take  a 
new  lease,  to  commence  from  the  expiration  of  the  three  months,  with  a 
proviso,  that  if  any  other  of  the  parties  interested  should  make  a  lodg- 
ment before  that  time,  the  agreement  should  be  void ;  it  was  decided  by 
Lord  Manners  that  the  lease  which  was  afterwards  granted  to  the  mort- 
gagee was  not  bound  by  any  trust  for  the  mortgagor.  "  The  principle," 
said  his  lordship,  "  to  be  extracted  from  all  the  authorities  amounts  to 
this, — that  whenever  a  mortgagee,  executor,  trustee,  or  tenant  for  life, 
gets  an  advantage,  either  by  being  in  possession,  or  behind  the  back  of 
the  party  mortgagor,  cestui  que  trust,  or  remainderman,  he  shall  not  re- 
tain the  same  for  his  own  benefit,  but  hold  it  in  trust, — the  new  lease, 
in  any  of  those  cases,  will  be  considered  as  a  graft  upon  the  old  one. 
Here  there  is  full  notice  given  by  the  mortgagee  that  he  will  not  redeem, 
and  he  gives  his  reasons  for  it;  he  does  not  go  behind  the  back  of  the 
mortgagor,  nor  is  he  in  possession,  nor  does  he  use  any  means  of  getting 
to  himself  an  advantage  which  belongs  to  another;  and  he  cannot,  as  I 
apprehend,  be  brought  within  the  principles  of  those  cases  by  which  in 
taking  a  new  lease  he  becomes  clothed  with  a  trust.  In  all  the  eases 
upon  this  subject,  the  party  by  being  in  possession  obtained  the  renewal, 
or  it  was  done  behind  the  back,  or  by  some  contrivance,  or  in  fraud,  of 
those  who  were  interested  in  the  old  lease,  and  there  was  either  a  rem- 
nant of  the  old  lease,  or  a  tenant-right  of  renewal,  on  which  the  new 
lease  could  be  ^ingrafted.  Here  no  part  of  Nesbitt's  conduct  p222"| 
shows  a  contrivance  ;  nor  was  he  in  possession.     All  that  Nesbitt 

(b)  See  Featherstonhaugh  v.  Fenwick,  17  Ves.  298  ;  Mulvauy  v.  Dillon,  1  B.  & 
B.  409;  Eyre  v.  Dolphin,  2  B.  &  B.  290  ;  Killick  v.  Flexney,  4  B.  C.  G.  161. 

(c)  Edwards  v.  Lewis,  2  Atk.  538,  per  Lord  Hardwicke. 

(rf)  Mulvany  v.  Dillon,  1  B.  &  B.  409;  James  v.  Dean,  7  Ves.  383  ;  S.  C.  15  Ves. 
236,  &c. 

(e)  Eyre  v.  Dolphin,  2  B.  &  B.  299. 

(/)  Giddiugs  v.  Giddings,  3  Russ.  241.  But  the  lease  of  the  additional  lands 
■will  not  be  a  graft,  Acheson  v.  Fair,  2  Conn.  &  Laws.  208. 

Iff)  Keech  v.  Sandford,  Sel.  Ch.  Ca.  61;  Griffin  r.  Griffin.  1  Sch.  &  Lef.  353. 

(A)  Blewett  v.  Millett,  7  B.  P.  C.  3G7. 

(i)  Giddings  v.  Giddings,  3  Russ.  241. 


232  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

treated  for  was  a  new  lease,  giving,  however,  full  opportunity  to  the 
lessee  to  dispose  of  his  interest,  or  to  renew,  if  he  was  enabled  to  do  so. 
It  was  urged,  that  a  court  of  equity  will  relieve  against  penalties  and 
forfeitures ;  but  those  are  cases  of  contract  and  introduced  by  the  acts 
of  the  parties  themselves,  not  where  a  forfeiture  arises  under  the  provi- 
sion of  an  act  of  parliament,  and  where  the  lessee  has  so  totally  forfeited 
his  interest  as  not  to  be  relievable  either  in  law  or  in  equity."  And 
his  lordship  appears  to  have  determined  the  case  upon  the  general  princi- 
ple; for  he  observed,  in  conclusion,  <^But  I  have  no  occasion  to  touch 
upon  the  act  of  parliament. "(A-) 

A  trustee  or  executor  who  has  renewed  a  lease  has  a  lien  upon  the 
estate  for  the  costs  and  expenses  of  the  renewal,  with  interest ;[/)  and 
where  lands  are  taken  under  the  new  lease  that  were  not  comprised  in 
the  original  lease^  the  court  will  apportion  the  expenses  according  to  the 
value  of  the  respective  lands.  (??i)  The  trustee  will  also  be  allowed  for 
money  subsequently  laid  out  in  lasting  improvements,(?i)  though  made 
duiiug  the  suit  for  recovering  the  lease. (o) 

In  the  case  of  a  renewal  by  tenant  for  life,  if  he  put  in  his  own  life, 
he  of  course  can  have  no  claim  to  reimbursement,(p)  but  if  he  put  in 
the  life  of  another,  the  expenses  will  be  apportioned  at  the  death  of  the 
tenant  for  life  according  to  the  time  of  his  actual  enjoyment  of  the  re- 
newed interest ;((/)  and  he  will  be  a  creditor  on  the  estate  for  the  appor- 
tionment, though  the  remaindermen  be  his  own  children,  who  resist  the 
claim  on  on  the  ground  of  advancement. (;•) 

r*99«n  ^^  t^*^  ^^^^  of  ^  testator  devising  all  his  interest  in  leaseholds 
L  ■'"'  J  *subject  to  an  annuity,  the  question  of  the  annuitant's  contribu- 
tion has  been  differently  regarded  by  different  judges.  In  Maxwell  v. 
Ashe(s)  Sir  John  Strange  decided  that  the  annuitant  was  7iot  bound  to 
contribute.  In  Moody  v.  Matthews,(A  where  a  feme  sold  an  annuity 
to  A.  for  his  life,  out  of  tithes  held  by  her  upon  lease,  and  covenanted 
to  pay  the  annuity,  and  that  the  tithes  should  continue  subject  to  it 
during  the  life  of  A.,  and  the  feme  married  and  died,  and  the  husband, 
who  took  the  term  by  survivorship,  renewed  at  his  own  expense.  Sir  W. 
Grant  determined  that  the  annuitant  was  not  to  be  called  upon  to  contri- 
bute, for  that  would  be  to  make  him  pay  the  consideration  twice,  and 
he  said  the  case  of  Maxwell  v.  Ashe  was  decisive.  On  the  other  hand, 
it  was  ruled  by  Lord  Manners,  in  the  case  of  a  will,  that  the  annuitant 
must  contribute  in  proportion  to  his  interest  in  the  property ;  for  though 

(k)  Nesbitt  T.  Tredennick,  1  B.  &  B.  29. 

{I)  Holt  V.  Holt,  1  Ch.  Ca.  190;  Rawe  v.  Chichester,  Amb.  715,  see  T20;  Coppin 
v.  Fernyhough,  2  B.  C.  C.  291 ;  Lawrence  v.  Maggs,  1  Ed.  453  ;  Pickering  v.  Vowles, 
1  B.  C.  C.  197 ;  James  v.  Dean,  11  Yes.  383  ;  Kempton  v.  Packman,  cited  7  Ves. 
176.  ,11 

{m)  Giddings  v.  Giddings,  3  Russ.  241. 
(«)  Holt  V.  Holt,  Lawrence  v.  Maggs,  ubi  supra, 
(o)  Wallej  V.  Whalley,  1  Vern.  484. 

(;;)  Lawrence  v.  Maggs,  1  Ed.  453.  (q)  See  infra. 

(r)  Lawrence  v.  Maggs,  1  Ed.  453. 
(«)  Maxwell  v.  Ashe,  cited  7  Ves.  184. 

(0  7  Ves.  174;  and  see  Jones  v.  Kearnev.  1  Conn.  &  Laws.  47;  Thomas  v. 
Burne,  1  Dru.  cv-  Walsh,  657. 


OF  COX  STRUG  TIVE  TRUSTS.  233 

the  testator  had  given  no  direction  upon  this  point,  it  was  incident  to 
this  sort  of  tenure. (?/)  At  the  time  of  this  decision  his  lordship  was  not 
aware  of  the  cases  before  Sir  J.  Strange  and  Sir  "W.  Grant;  but  on  a 
subsequent  occasion,  when  the  same  point  again  rose  before  him,  he  ad- 
hered to  the  same  opinion,  notwithstanding  the  authority,  for  "  all  the 
legatees,"  he  said,  "appear  to  have  been  equally  the  objects  of  the  testa- 
tor's favour.  Could  it  have  been  his  intention  that  one  of  them  should 
alone  bear  the  expense  of  the  renewal,  and  that  the  others  should  receive 
the  full  amount  of  their  annuities  without  any  deduction  ?"(w) 

In  making  the  assignment  to  the  cestui  que  trust  the  trustee  will  also 
be  indemnified  against  the  personal  covenants  which  he  entered  into  with 
ihe  lessor ;(«')  and  on  his  own  part  must  clear  the  lease  of  all  incumbran- 
ces created  by  him,  except  under-leases  at  rack-rent Y.r) 

The  trustee  must  also  account  to  the  cestui  que  trust  for  the  j-^.^.^,., 
*mesne  rents  and  profits  which  he  has  received  from  the  estate,(^)  L  "'  J 
and  also  for  any  sub-fines  that  may  have  been  paid  to  him  by  under- 
lessees,  (s)  And  the  cestui,  que  trust,  though  the  lease  which  was  the 
ground  of  his  equity  has  since  actually  expired,  may  still  file  a  bill  for 
an  account  of  the  rents  and  profits. (a)  In  the  case  of  a  renewal  by 
tenant  for  life,  the  account  will  of  course  be  restricted  to  the  period 
since  the  tenant  for  life's  decease. (i) 

The  cestui  que  trxist  may  pursue  his  remedy  not  only  against  the  original 
trustee,  executor,  or  tenant  for  life,  and  volunteers  claiming  through 
them;(c)  but  also  against  a  purchaser,  with  notice  express  or  implied  of 
the  plaintiff's  title  •,{d\  and  a  purchaser  will  be  deemed  to  have  had 
notice  if  the  lease  assigned  to  him  recited  the  surrender  of  a  former 
lease  which  recited  the  surrender  of  a  previous  lease,  in  which  mention 
was  made  of  the  settlement  under  which  the  cestui  que  trust  claims  ;(e) 
and  the  volunteer  or  purchaser  with  notice  will  not  be  helped  by  a  fine 
levied, fy)  or  even  by  a  release  from  the  cestui  que  trust,  if  executed  by 
him  while  in  ignorance  of  the  facts  of  the  case.(^)  However,  a  purcha- 
ser will  stand  in  the  place  of  his  assignor  in  respect  of  any  allowances  for 
expenses  incurred  in  the  renewal. (A) 

A  cestui  que  trust  will  be  barred  of  his  remedy  if  he  be  guilty  of  long 
acquiescence,  as,  it  seems  in  one  case,  for  a  period  of  fifteen  years. (/] 

{u)  Winslow  V.  Tighe,  2  B.  &  B.  195.  (r)  Stubbs  v.  Roth,  2  B.  &  B.  548. 

{iv)  Giddings  v.  Giddings,  3  Russ.  241  ;  Keech  v.  Sandford,  Sel.  Ch.  Ca.  61. 

{x)  Bowles  V.  Stewart,  1  Sell.  &  Lef.  209,  see  230. 

(y)  Giddings  v.  Giddings,  Keech  y.  Sandford,  nbi  supra ;  Mulvany  v.  Dillon,  1 
B.  &  B.  409;  Walley  v.  Whalley,  1  Vern.  484;  Lucken  v.  Rushworth,  Finch,  392; 
Blewett  V.  Millett,  7  B.  P.  C.  367.         {z)  Rawe  v.  Chichester,  Amb.  715,  see  720. 

(a)  Eyre  v.  Dolphin,  2  B.  &  B.  290. 

{b)  James  v.  Dean,  11  Ves.  383,  see  396  ;  Giddings  v.  Giddings,  3  Russ.  241. 

(c)  Bowles  V.  Stewart,  1  Sch.  &  Lef.  209 ;  Eyre  v.  Dolphin,  2  B.  &  B.  290  ; 
Blewett  V.  Millett,  7  B.  P.  C.  367. 

{d)  Coppin  v.  Fernyhough,  2  B.  C.  C.  291 ;  Walley  v.  Whalloy,  1  Vern.  484  ; 
Eyre  v.  Dolphin,  2  B.  &  B.  290. 

(e)  Coppin  v.  Fernyhough,  ubi  supra;  Hodgkinson  v.  Cooper,  9  Beav.  304. 

(/)  Bowles  V.  Stewart,  1  Sch.  &  Lef.  209.  {g)  S.  C. 

{h)  Coppin  V.  Fernyhough,  2  B.  C.  C.  291. 

(?)  Isald  V.  Fitzgerald,  cited  Owen  v.  Williams,  Amb.  735,  737;  and  see  Norris 
V.  Le  Neve,  3  Atk.  38  ;  Jackson  v.  Welsh,  LI.  &  G.  Rep.  t.  Plunket,  346. 


234      LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

*If  tlie  trustee  of  a  lease  become  the  j^urcTiaser  of  the  rever- 
[*225]  ^^.^^^^  gjj.  ^_  Qxant  said,  that,  as  he  thereby  intercepts  and  cuts 
off  the  chance  of  future  renewals,  and  consequently  makes  use  of  his  sit- 
uation to  prejudice  the  interest  of  those  who  stand  behind  him,  there 
mi"-ht  be  some  sort  of  equity  in  a  claim  to  have  the  reversion  considered 
as  a  substitution  for  those  interests,  but  his  honor  was  not  aware  of  any 
determination  to  that  effect. (?) 

But  where  a  lease  had  been  held  of  a  college,  and,  the  corporation  hav- 
ing- disposed  of  the  reversion  to  a  stranger,  the  trustee  purchased  of  the 
alienee,  his  honor  expressly  decided  that  the  parties  interested  in  the 
original  lease  had  no  equity  against  the  trustee,  for  the  tenant-right  of 
renewal  with  a  public  body  was  gone,  and  a  lease  at  a  rack-rent  was  all 
that  could  be  expected  from  a  private  proprietor. (m) 

The  principle  upon  which  a  court  of  equity  establishes  constructive 
trusts  might  be  pursued  into  numerous  other  instances  :  as  if  a  factor,(«) 
agent,(o)  or  other  confidential  person,  acquire  a  pecuniary  advantage  to 
himself  through  the  medium  of  his  fiduciary  character,  he  is  accountable 
for  those  profits  to  his  employer  or  other  person  whose  interest  he  was 
bound  to  advance. 

So  if  a  tenant  for  life  commit  equitable  waste,  he  is  a  trustee  of  the 
proceeds  for  the  benefit  of  the  remainderman. (p)  "The  restraint  upon 
the  legal  owner  as  to  equitable  waste,"  said  Sir  J.  Leach,  "is  to  be  con- 
sidered as  founded  on  a  breach  of  that  tnist  and  confidence  which  the 
devisor  reposed  in  the  tenant  for  life,  that  he  would  use  his  legal  estate 
only  for  the  purpose  of  fair  enjoyment.  It  is  a  trust  implied  in  equity 
from  the  subsequent  limitations,  and  from  the  presumed  intention  of  the 
testator  that  he  meant  an  equal  benefit  to  all  in  succession. "(5) 
r*-?9n  *-A.gain,  where  A.  contracted  for  the  sale  of^ja?'^  of  his  estate, 
L  "^  J  and  the  purchaser  requiring  a  fine  to  be  levied,  B.,  who  was  A.'s 
attorney,  and  also  his  heir-apparent,  advised  a  fine  to  be  levied  of  the 
whole  estate,  whereby  the  will  of  the  vendor  was  revoked,  and  the  part 
not  included  in  the  sale  descended  to  B.  as  heir-at-law,  it  was  held 
that  the  devisee  under  the  will  could  call  upon  B.  as  a  trustee. (r) 
"  Whether  you  meant  fraud,"  said  Lord  Eldon,  "  whether  you  knew  you 
were  the  heir-at-law  of  the  testator  or  not,  you  have  been  wanting  in 
what  I  conceive  to  be  the  duty  of  an  attorney,  if  it  happens  that  you  get 
an  advantage  by  that  neglect,  you  shall  not  hold  that  advantage,  but  you 
shall  be  a  trustee  of  the  property  for  the  benefit  of  that  person  who  would 
have  been  entitled  to  it  if  you  had  known  what  as  an  attorney  you  ought 

(1)  Randall  v.  Russell,  3  Mer.  197  ;  and  see  Hardman  v.  Johnson,  ib.  347  ;  Nor- 
ris  V.  Le  Meve,  2  Atk.  37  and  38  ;  Lesley's  case,  2  Freem.  52  ;  Fosbrooke  v.  Bal- 
guy,  1  M.  &  K.  226  ;  Giddings  v.  Giddings,  3  Russ.  241. 

(m)  Randall  v.  Russell,  3  Mer.  190. 

(n)  East  India  Company  v.  Henchman,  1  Ves.  jun.  287 ;  S.  C.  8  B.  P.  C.  85. 

(0)  Fawcett  v.  Whitehouse,  1  R.  &  M.  132;  Hichens  v.  Congreve,  ib.  150;  Car- 
ter V.  Home,  1  Eq.  Ca.  Ab.  7;  Brookman  v.  Rothschild,  3  Simons,  153;  Gillettv. 
Peppercorne,  3  Beav.  78  ;  Bentley  v.  Craven,  18  Beav.  75. 

{p)  Marquis  of  Ormonde  v.  Kynersley,  5  Mad.  369. 

(?)  Ib. 


(r)  Bulkly  V.  Wilford,  2  CI.  &  Fin.  177  ;  S.  C.  8  Bl.  N.  S.  Ill ;  and  see  Segrave 
V.  Kirwan,  Beat.  157. 


OF    CONSTRUCTIVE    TRUSTS.  235 

to  have  known,  and,  not  knowing  it,  you  shall  not  take  advantage  of  your 
own  ignorance.  It  is  too  dangerous  to  the  interests  of  mankind  that 
those  who  are  bound  to  advise,  and  who,  being  bound  to  advise,  ought 
to  be  able  to  give  sound  and  sufficient  advice,  to  allow  that  they  shall 
ever  take  advantage  of  their  own  ignorance,  of  their  own  professional 
ignorance,  to  the  prejudice  of  others. "(s) 

An  agent  employed  by  a  trustee  is  accountable  to  his  principal  only, 
and  cannot  as  a  constructive  trustee  be  made  responsible  to  the  cesfuis 
que  trust.{t\  But  of  course  the  rule  does  not  apply  where  the  agent  has 
taken  an  actively  fraiiduJent  part,  and  so  made  himself  a  principal. (u) 
"  It  cannot  be  disputed,"  said  Lord  Langdale,  <'  that  if  the  agent  of  a 
trustee,  whether  a  corporate  body  or  not,  knowing  that  a  breach  of  trust 
*is  being  committed,  interferes  and  assists  in  that  breach  of  trust,  p:)-,-,.-,--, 
he  is  personably  answerable,  although  he  may  be  employed  as  the  L  "'"  J 
agent  of  the  person  who  directs  him  to  commit  that  breach  of  trust. "(w) 
Thus,  where  a  trust  fund  was  lodged  at  a  banker's  and  was  headed  as  a 
trust  account,  and  the  surviving  trustee  became  indebted  to  the  bank,  and 
with  the  concurrence  of  the  bankers  (who  were  cognizant  of  the  trust, 
not  only  from  the  heading  of  the  account,  but  also  expressly,  from  cer- 
tain private  transactions,)  the  trust  fund  was  applied  in  discharge  of  the 
trustee's  private  debt ;  the  bankers  could  not  protect  themselves  on  the 
ground  of  mere  agency,  but  were  held  responsible  to  the  cestuisque  trust 
for  a  breach  of  faith. (ti?) 

Under  the  head  of  constructive  trusts  may  be  mentioned  the  case  of  a 
settlement  left  in  the  hands  of  a  person  taking  only  a  partial  benefit  under 
it  as  a  tenant  for  life;  where  the  other  persons  interested  and  claiming 
under  the  same  title  have  a  right  to  the  fair  use  of  the  document,  and  the 
holder  is  deemed  a  trustee  for  them,  and  is  bound  to  produce  it  at  their 
request  ;(x)  and  in  one  case  it  was  ruled  that  if  a  person  sell  part  of  his 
estate  and  retain  the  title-deeds,  though  he  may  not  have  given  a  cove- 
nant for  production,  he  is  compellable  to  produce  them  as  common  pro- 
perty to  the  purchaser. (y)  But  in  Barclay  v.  Kaine,(a.)  Sir  J.  Leach 
seems  to  have  doubted  whether,  if  part  be  sold  and  the  title-deeds  be 
delivered  to  the  purchaser,  a  future  purchaser  from  him  could  be  ordered, 
where  there  was  no  covenant  for  that  purpose,  to  produce  them  to  the 

(5)  2  CI.  &  Fin.  177. 

[t)  Keane  v.  Robarts,  4  Mad.  332.  see  356,  359  ;  Davis  v.  Spurling,  1  R.  &  M. 
64;  S.  C.  Taml.  199;  Crisp  v.  Sprauger,  Nels.  109;  Saville  v.  Tancred,  3  Sw.  141, 
note;  Nickolsoa  \.  Kuowles,  5  Mad.  47;  Myler  v.  Fitzpatrick,  6  Mad.  360;  Fyler 
V.  Fyler,  3  Beav.  550  ;  Lockwood  v.  Abdy,  14  Sim.  437  ;  and  see  Ex  parte  Burton, 
3  Mont.  D.  &  De  Gex,  364  ;  Re  Bunting,  2  Ad.  &  Ell.  467. 

{u)  See  Fyler  v.  Fyler,  3  Beav.  550;  Portlock  v.  Gardner,  1  Hare,  606;  Ex 
parte  Woodin,  3  Mont.  D.  &  De  G.  399  ;  Attorney-General  v.  Corporation  of  Lei- 
cester, 7  Beav.  176;  Paunell  v.  Hurley,  2  Coll.  241 ;  Alleyne  v.  Darcy,  4  Ir.  Ch. 
Rep.  199. 

{v)  Attorney-General  v.  Corporation  of  Leicester,  7  Beav.  179. 

(«;)  Pannell  v.  Hurley,  2  Coll.  241 ;  Bodenham  v.  Hoskyns,  2  De  Gex,  Mac.  & 
Gord.  908. 

(x)  Banbury  v.  Briscoe,  2  Ch.  Ca.  42  ;  Harrison  v.  Coppard,  2  Cox,  318  ;  Shore 
v.  CoUett,  Coop.  234;  Davis  v.  Dysart,  20  Beav.  405. 

{y)  Fain  v.  Ayers,  2  S.  &  S.  533. 

\z)   1  S.  &  S.  449 ;  see  7  Byth.  by  Jann.  375. 


236  LEWIX    ON    THE    LAVv'    OF    TRUSTS,    ETC. 

owners  of  the  other  parts.  The  real  property  commissioners  observe, 
that  previously  to  this  case  it  had  been  supposed,  either  that  an  original 
independent  equity  existed  entitling  any  party  interested  in  a  deed  to 
call  for  its  production  by  any  other  person  having  the  custody  of  it,  or. 
at  least  that  such  an  equity  existed  wherever  the  parties  *requir- 
[*228]  .^^  ^^g  production  claimed  under  a  person  who  had  taken  the 
precaution^'to  procure  a  covenant  for  that  purpose,  and  the  person  hav- 
ing the  actual  custody  of  it  derived  that  custody  from  or  through  a  per- 
son who  had  entered  into  such  a  covenant  ;(a)  upon  which  Sir  E.  Sugden 
observes,  that  the  rule  in  equity  was  never  so  universal  as  it  is  quoted  in 
the  first  part  of  the  above  statement,  but  that  the  second  branch,  stating 
what  at  least  the  doctrine  was,  appears  to  be  correct.(^) 

Constructive  trusts  are  said  also  to  arise  where  the  trust  estate  is  eon- 
verted  by  the  trustee  from  one  species  of  property  into  another ;  and 
again,  where  the  trust  estate  passes  from  the  trustee  into  the  hands  of  a 
volunteer,  whether  with  or  without  notice,  or  of  a  purchaser  for  valuable 
consideration  with  notice ;  but  as  these  are  cases  rather  of  an  existing 
trust  continued  and  kept  on  foot  than  of  a  new  trust  created,  the  con- 
sideration of  these  topics  will  be  reserved  to  a  subsequent  part  of  the 
treatise. 

In  concluding  the  subject  of  trusts  by  operation  of  law,  it  may  be  pro- 
per to  offer  a  few  remarks  on  the  wording  of  the  Statute  of  Frauds. (c) 

By  the  eighth  section  it  is  enacted,  that  "  where  any  convegance  shall 
be  made  of  any  lands  or  tenements  by  which  a  trust  or  confidence  shall  or 
may  arise  or  result  hy  the  imjjUcation  or  ronsfniction  of  laic,  or  be  trans- 
ferred or  extinguished  by  an  act  or  operation  of  law,  then  and  in  every 
such  case  such  trust  or  confidence  shall  be  of  the  like  force  and  effect  as 
the  same  would  have  been  if  that  statute  had  not  been  made ;  any  thing 
thereinbefore  contained  to  the  contrary  notwithstanding." 

Lord  Hardwicke  upon  this  clause  observed,  "  I  am  now  bound  down 
by  the  Statute  of  Frauds  to  construe  nothing  a  resulting  trust  but  what 
are  there  called  trusts  by  operation  of  law  ;  and  what  are  those  ?  Why, 
First,  when  an  estate  is  purchased  in  the  name  of  one  person  but  the 
money  or  consideration  is  given  by  another;  or,  Secondly,  where  a 
r*99qn  *trust  is  declared  only  as  to  part,  and  nothing  said  as  to  the 
L  ""  J  rest,  in  which  case  what  remains  undisposed  of  will  result  to  the 
heir-at-law.  I  do  not  know  any  other  instance  besides  these  two,  where 
the  court  has  declared  resulting  trusts  by  operation  of  law,  unless  in  cases 
of  fraud,  and  where  transactions  have  been  carried  on  mala  fide." {d^ 

But  upon  this  opinion  of  Lord  Hardwicke,  Mr.  Fonblanque  has  made 
the  following  just  remarks  : — '<  This  construction  of  the  clause  of  the 
Statute  of  Frauds  restrains  it  to  such  trusts  as  arise  by  operation  of  law, 
whereas  it  clearly  extends  to  such  as  are  raised  by  construction  of  courts 
of  eqxdty  ;  as,  in  the  case  of  an  executor  or  guardian  renewing  a  lease 
though  with  his  own  money,  such  renewal  shall  be  deemed  to  be  in  trust 
for  the  person  beneficially  interested  in  the  old  lease.     It  is  also  observ- 

(a)  3rd  Rep.  (6)  2  Vend.  &  Purch.  11  Ed.  479,  480. 

(c)  29  Car.  2,  c.  3.  {d)  Lloyd  v.  Spillet,  2  Atk.  150. 


OF    CONSTRUCTIVE    TRUSTS.  237 

able,  that  the  first  instance  stated  by  his  lordship  of  a  resulting  trust  is 
not  so  qualified  as  to  let  in  the  exceptions  to  which  the  general  rule  is 
subject,  and  the  second  instance  is  only  applicable  to  a  will,  whereas  the 
doctrine  of  resulting  trusts  is  also  applicable  to  conveyances." {e^  As  to 
the  latter  part  of  this  criticism  it  may  be  observed  that  while  Atkyns 
makes  Lord  Hardwicke  speak  of  a  will  only,  Barnardiston,  the  other 
reporter,  applies  his  lordship's  observation  to  a  convey ance.i^f^  It  would 
thus  appear  that  Lord  Hardwicke  in  fact  extended  his  remark  to  both  a 
will  and  a  conveyance. 

Both  Lord  Hardwicke  and  Mr.  Fonblanque  assume  that  the  seventh  or 
enacting  clause  embraces  all  trusts  indiscriminately,  and  that  such  as 
arise  by  operation  of  law  are  only  saved  from  the  act  by  virtue  of  the 
subsequent  exception  contained  in  the  eighth  section  ;  but  the  language 
of  the  latter  clause,  that  "where  any  conveyance  shall  be  made  of  any 
lands  or  tenements  by  which  a  trust  or  confidence  shall  or  may  arise  or 
result,^'  &c.  seems  to  have  escaped  observation  ;  for,  unless  conveyance 
be  taken  with  great  violence  to  the  meaning  of  words  to  include  a  devise, 
it  is  clear  that  trusts  resulting  under  a  will  are  not  reached  by  the  terms 
of  the  saving.  Nor  is  it  easy  to  suppose  that  the  legislature  could  mean 
to  include  a  *devise ;  for  the  fifth  and  sixth  sections  relate  exclu-  rs^^on-i 
sively  to  devises,  and,  had  it  fallen  within  the  scope  of  the  act  to  L  *"  J 
extend  the  eighth  section  to  wills,  it  can  scarcely  be  conceived  that  the 
proper  and  technical  word  should  not  necessarily  have  suggested  itself. 
The  question  then  arises,  If  resulting  trusts  upon  a  ^vill  are  not  saved  by 
the  exception,  how  are  they  not  aff"ected  by  force  of  the  previous  enact- 
ment? As  the  statute  was  directed  against  frauds  and  perjuries,  it  is 
obvious  that  resulting  trusts  were  not  within  the  mischief  intended  to  be 
remedied.  The  aim  of  the  legislature  was,  not  to  disturb  such  trusts  as 
were  raised  by  maxims  of  equity,  and  so  could  not  open  a  door  to  fraud 
or  perjury,  but,  by  requiring  the  creation  of  trusts  by  jiarties  to  he  mani- 
fested in  writing,  to  prevent  that  fraud  and  perjury  to  which  the  admis- 
sion of  parol  testimony  had  hitherto  given  occasion.  And  the  enactment 
itself  is  applicable  only  to  this  view  of  the  subject;  for  the  legislature 
could  scarcely  direct,  that  "  all  declarations  or  creations  of  trusts  should 
be  manifested  and  proved,"  &c.,  unless  the  trusts  were  in  their  nature 
capable  of  manifestation  and  proof;  but,  as  resulting  trusts  are  the  eflfect 
of  a  rule  of  law,  to  prove  them  would  be  to  instruct  the  court  in  its  own 
principles,  to  certify  to  the  judge  how  equity  itself  operates.  The  excep- 
tion could  only  have  been  inserted  ex  maj'ori  cautela,  that  the  extent  of 
the  enactment  might  not  be  left  to  implication.  But  why,  it  will  be 
asked,  are  resulting  trusts  upon  conveyances  excepted,  and  not  resulting 
trusts  upon  ^vills  ?  The  only  explanation  that  suggests  itself  is  this  : — 
The  statute  had  spoken  only  of  declarations  or  creations  of  trust,  and  by 
a  will  no  resulting  trust  is  or  can  be  declared  or  created.  If  lands  be 
devised  to  A.  and  his  heirs  upon  trust  to  pay  the  testator's  debts,  the 
resulting  trust  of  the  surplus  is  no  new  declaration  or  creation  ;  the  right 
construction  is,  that  the  testator  has  disposed  of  the  legal  estate  to  the 

(c)  2  Tr.  Eq.  IIG,  note  {a).  (/)  See  Lloyd  v.  Spillet,  Barn.  388. 

February,  1858. — 16 


238 


LEVriK    ox    TUE    LAW    OF    TRUSTS,    ETC. 


devisee,  and  of  part  of  the  equitable  in  favour  of  creditors  ;  but  the  resi- 
due of  the  equitable,  tbousli  said  to  result,  lias  in  fact  never  been  parted 
with  but  descends  upon  the  heir-at-law  as  part  of  the  original  inheritance. 
In  convei/anccs,  however,  this  is  not  equally  the  case;  for  if  a  purchase 
be  taken  in  the  name  of  a  third  person,  a  trust  which  had  no  previous 
..  .  ^^  existence  arises  upon  the  property  in  favour  *of  the  real  pur- 
[^-^^  chaser ;  and  so  if  a  lease  be  renewed  by  a  trustee,  the  equity 
which  was  annexed  to  the  old  term  immediately  fastens  upon  the  new. 
Here,  then,  it  is  evident  there  is  an  actual  creation  of  trust ;  and,  to 
obviate  all  doubts  as  to  the  operation  of  the  enactment,  resulting  trusts 
arising  out  oi  conveyances  are  expressly  excepted. 


j-*232]  *CH AFTER  X. 

OP   DISCLAIMER   AND   ACCEPTANCE   OF   THE   TRUST. 

HA^^NCT  treated  of  the  creation  of  trusts,  whether  by  the  act  of  a  party 
or  by  operation  of  law,  we  shall  next  direct  our  attention  to  the  estate 
and  office  of  the  trustee,  and,  as  a  preliminary  inquiry,  we  propose  in  the 
present  chapter  to  offer  a  few  remarks  upon  the  subject  of  the  trustee's 
disclaimer  or  acceptance  of  the  trust. 

I .   Of  D  iscla  imer. 

It  may  be  laid  down  as  a  clear  and  undisputed  rule,  that  no  one  is  com- 
pdlalle  to  undertake  a  trust.(a)  "  Though  a  person,"  said  Lord  Redes- 
dale,  "  may  have  agreed  in  the  lifetime  of  a  testator  to  accept  the  exe- 
cutorship, he  is  still  at  liberty  to  recede,  except  so  far  as  his  feelings  may 
forbid  it ;  and  it  will  be  proper  for  him  to  do  so,  if  he  finds  that  his 
charge  as  executor  is  different  from  what  he  conceived  it  to  be  when  he 
entered  into  the  engagement. "(6) 

But  there  does  not  appear  to  be  any  instance  in  which,  after  accept- 
ance by  the  trustee,  his  Tieir  has  been  allowed  to  disclaim ;  and  if  the 
law  permitted  it,  many  instances  would  no  doubt  have  occurred.  The 
inconveniences  of  such  a  right  of  disclaimer  would  be  great,  as  the  legal 
estate  would  become  vested  in  the  crown.  However,  where  the  heir 
takes  not  strictly  in  that  character,  but  as  special  occupant,  he  may  exer- 
cise his  discretion  in  accepting  the  estate  or  not.(c) 
P^gqq-i  If  the  party  named  as  trustee  intend  to  decline  the  adminis- 
L  -I  tration  *of  the  trust,  he  ought  to  execute  a  disclaimer  without 
delay.  There  is  no  rule,  however,  that  a  trustee  must  execute  a  dis- 
claimer within  any  particular  time  :  thus  it  will  operate  after  an  interval 
of  sixteen  years,  if  the  interval  can  be  so  explained  as  to  rebut  the  pre- 
fer) Robinson  v.  Pett,  3  P.TT.  251,  per  Lord  Talbot ;  Moyle  v.  Moyle,  2  R.  &  M. 
Tlo,  per  Lord  Brougham ;  Lowry  v.  Fulton,  9  Sim.  123.  per  Sir  L.  ShadweU. 

{b)  Doyle  v.  Blake,  2  Sch.  &  Lef.  239. 

(c)  Creagh  v.  Blood,  3  Jones  &  Lat.  170. 


OF    DISCLAIMER    AXD    ACCEPTANCE    OF    TRUST.      239 

sumption  of  bis  having  accepted  the  trust.^c/)  But  if  he  lie  by  for  so 
long  a  time,  it  is  for  the  jury  to  say  whether  it  was  not  because  he  had 
assented  to  the  devise ;(e)  and  where  a  trustee,  knowing  his  appointment 
as  trustee,  has  done  nothing,  but  has  not  disclaimed,  it  will  be  presumed 
after  a  long  lapse  of  time,  as  twenty  years,(/)  and  a  fortiori,  after  thirty- 
four  years,(^)  that  he  had  accepted  the  trust ;  and  even  where  the  deed 
was  only  four  years  old.  Lord  St.  Leonards  observed,  ''  that  where  an 
estate  was  vested  in  trustees  who  knew  of  their  appointment  and  did  not 
object  at  the  time,  they  would  not  be  allowed  afterwards  to  say  they  did 
not  assent  to  the  conveyance,  and  it  would  require  some  strong  act  to 
induce  the  court  to  hold  that  in  such  a  case  the  estate  was  divested.  He 
spoke,"  he  said,  "  with  respect  to  the  effect  upon  third  parties ;  ever^- 
court  and  every  jury  would  presume  an  assent."(/i) 

The  disclaimer  should  be  by  deed,  for  a  deed  is  clear  evidence  and 
admits  of  no  ambiguity  ;(i)  and  the  instrument  should  be  a  disclaimer 
and  not  a  conveyance,  for  the  latter,  as  it  transmits  the  estate,  has  been 
held  to  imply  a  previous  acceptance  of  the  office  ;(Z;)  but  Lord  Eldon 
expressed  his  opinion,  that,  where  the  intention  was  disclaimer,  the 
instrument  ought  to  receive  that  construction,  though  it  was  a  convey- 
ance in  form.0 

If  an  executor  of  an  executor  take  upon  him  the  administra-  r:}:9q  i-i 
tion  *of  the  goods  of  the  first  testator,  he  cannot  refuse  the  L  ~  J 
administration  of  the  goods  of  the  latter ;  for,  it  is  only  through  the 
medium  of  the  latter  testator  that  he  can  reach  the  executorship  of  the 
former.  And  although  it  was  formerly  thought  that  an  executor  might 
renounce  probate  of  the  original  testator,  and  at  the  same  time  or  subse- 
quently prove  the  will  of  the  immediate  testator, fjji)  yet  the  practice 
has  now  been  settled  to  the  conti'ary.(?i) 

Suppose  a  trustee  of  two  distinct  settlements  created  at  different  times 
and  wholly  independent  of  each  other  were  to  devise  all  his  trust  estates 
to  the  same  person,  could  such  person  accept  one  estate,  and  disclaim 
the  other  ?  It  would  probably  be  held,  that  he  might ;  but  he  should 
lose  no  time  in  manifesting  his  intention,  for  should  he  act  as  owner  of 
one  estate  and  not  expressly  disclaim  the  other,  the  law  would  presume 
him  to  have  accepted  both. 

If  a  person  be  nominated  a  trustee  in  a  will  and  also  take  a  benefit 

{d)  Doe  V.  Harris,  16  M.  &  W.  517  ;  and  see  Noble  t.  Meymott,  14  Bear.  471. 

(e)  See  Doe  v.  Harris,  16  M.  &  W.  522.         (/)  In  re  Uuiaeke,  1  Joues  &Lat.  1. 

[g)  In  re  Needbam,  1  Joues  &  Lat.  34. 

(A)  Wise  T.  Wise,  2  Jones  &  Lat.  403 ;  see  412. 

[i)  Stacey  v.  Elpb,  1  M.  k  K.  199,  per  Sir  J.  Leach. 

(k)  Crewe  v.  Dicken,  4  Yes.  97 ;  and  see  Urcb  v.  Walker,  3  M.  &  C.  702. 

(Z)  Nicloson  v.  Wordsworth,  2  Sw.  372.  In  Attorney-General  v.  Doyley,  2  Eq. 
Ca.  Ab.  194,  the  trustee  who  declined  to  act  was  directed  to  convey,  and  the  same 
decree  was  made  in  Hussey  v.  Markham,  Rep.  t.  Finch,  258.  In  Sharp  v.  Sharp, 
2  B.  &  A.  405,  it  was  held  the  trustees  had  not  acted,  though  they  had  conveyed 
the  estate  instead  of  disclaiming.  See  Urch  v.  Walker,  3  M.  &  C.  702 ;  Richardson 
v.  Hulbert,  1  Anst.  65. 

[m)  Shepp.  Touch,  by  Preston,  464 ;  Wankford  v.  Wankford,  Freem.  520 ;  Hayton 
v.  Wolfe,  Cro.  Jac.  614;  S.  C.  Palmer,  156;  Button,  30. 

(n)  In  the  goods  of  Perry,  2  Curt.  655;  and  see  In  the  goods  of  Beer,  15  Jar. 
160. 


240 


LEAVIN    ON    THE    LAW    OF    TRUSTS,    ETC. 


under  it,  can  he  claim  the  testator's  bounty,  and  at  the  same  time  dis- 
claim the  onus  of  the  trust  ?(o)  It  would  seem  that  he  might,  for  an 
executor,  who  is  also  a  legatee,  may  renounce  probate  and  yet  claim  the 
legacy,  and  it  is  difficult  to  point  out  the  distinction  between  the  two 

cases.  1     •      n        1  •       If.  -1     • 

If  one  be  named  as  trustee  without  any  authority  from  himself,  he  is 
justified  in  taking  the  opinion  of  counsel  upon  the  propriety  of  executing 
a  deed  of  disclaimer,  and  if  a  person  agree  to  pay  the  costs  of  the 
disclaimer  and  the  bill  of  costs  be  taxed,  the  item  of  counsel's  opinion 
will  be  allowed. (^j) 

A  trust  may  be  disclaimed  at  the  bar  of  the  court,(5')  or  by  answer  in 
chancery,  and  the  person  named  as  trustee  will  be  entitled  to  his  costs,(r) 
but  only  as  between  party  and  party,(s)  *though  the  bill  be  not 
L  ■"  J  dismissed  against  him  before  the  hearing  ;(<)  and  if  his  answer 
be  unnecessarily  long,  he  will  only  be  allowed  what  would  have  been  the 
reasonable  costs  of  a  simple  disclaimer. («) 

A  trust  may  also  be  repudiated  on  the  evidence  of  conduct  without 
any  express  declaration  of  disclaimer  ;(y)  but  a  person  would  act  very 
imprudently,  who  allowed  so  important  a  question  as  whether  he  is  a 
trustee  or  not  to  remain  matter  of  construction. 

After  renunciation  of  the  trust,  whether  by  express  disclaimer,  or  by 
conduct  which  is  tantamount  to  it,  a  trustee  may  assist  as  agent,  or  act 
under  a  letter  of  attorney,  in  the  management  of  the  estate,  without 
incurring  responsibility ;(«?)  but  the  caution  need  scarcely  be  suggested, 
that  all  such  interference  cannot  be  too  scrupulously  avoided  before  the 
fact  of  the  renunciation  of  the  trust  has  been  most  unquestionably  esta- 
blished. The  circumstance  that  the  person  named  as  trustee  is  to  receive 
a  profit  from  his  agency,  excites  a  suspicion  in  the  mind  of  the  court. (a;) 

What  will  amount  to  a  disclaimer  at  Imo,  so  as  to  devest  the  estate,  is 
a  very  distinct  question  from  the  disclaimer  of  the  office  in  equity. 

It  was  formerly  held  (at  least  such  was  the  clear  opinion  of  Lord 
Coke,)  that  &  freehold,  whether  vested  in  a  person  by  feoffment,  grant,(^) 
or  devise,(5;)  could  not  be  disclaimed  but  by  matter  of  record  ;  and  the 
reason,  upon  which  this  maxim  was  founded,  was,  that  the  suitor  might 

(o)  See  Talbot  v.  Radnor,  3  M.  &  K.  254;  PoUexfen  v.  Moore,  3  Atk.  272; 
Andrew  v.  Trinity  Hall,  Camb.  9  Ves.  525. 

(p)  In  re  Tryon,  7  Beav.  496.  {q)  Ladbrook  v.  Bleaden,  M.  R.  16  Jur.  630. 

[r]  Hickson  v.  Fitzgerald,  1  Moll.  14. 

(s)  Norway  v.  Norway,  2  M.  &  K.  278,  overruling  Sherratt  v.  Bentley,  1  R.  & 
M.  655. 

{t)  Bray  v.  West,  9  Sim.  429. 

(m)  Martin  v.  Fersse,  1  Moll.  146 ;  Parsons  v.  Potter,  2  Hog.  281. 

[v)  Stacey  v.  Elph,  1  M.  &  K.  195. 

(w)  Dove  V.  Everard,  1  R.  &  M.  231 ;  Harrison  v.  Graham,  3  Hill's  MSS.  239, 
cited  1  P.  W.  241,  Gth  ed.,  note  (y);  Stacey  v.  Elph,  1  M.  &  K.  195  ;  Lowry  v. 
Fulton,  9  Sim.  104;  Montgomery  v.  Johnson,  11  Ir.  Eq.  Rep.  480. 

(z)  Montgomery  v.  Johnson,  11  Ir.  Eq.  Rep.  481. 

{y)  Butler  and  Baker's  case,  3  Re.  26,  a.  27,  a  ;  Anon,  case,  4  Leon.  207  ;  Shepp. 
Touch.  285.  '  ;  ;     >  ;  ,         ff 

(z)  Bonifant  v.  Greenfield,  Godb.  79,  per  Lord  Coke;  but  at  the  rehearing  (Or. 
El.  80,)  it  was  adjudged  that  three  could  pass  the  u-hole  estate,  the  fourth  having 
disclaimed  by  act  in  pais ;  and  see  Shepp.  Touch.  452. 


OF    DISCLAIMER    AND    ACCEPTANCE    OF    TRUST.      241 

be  more  certainly  apprised  wlio  was  the  tenant  to  the|)m'Ci)je.(a)  But 
tlie  *doctrine  of  modern  times  is,  that  disclaimer  by  matter  of  pogg-i 
record  is  unnecessary  ;(h)  for,  as  Lord  Tenterden  observed,  there  L  "  J 
can  be  no  disclaimer  by  a  person  in  a  court  of  record,  unless  some  other 
person  think  fit  to  cite  him  there  to  receive  his  disclaimer,  and  if  the 
estate  be  damnosa  hcercditas,  that  is  not  very  likely  to  happen. (c)  Mr. 
Justice  Holroyd  laid  it  down,  that  even  a  deed  might  be  dispensed  with, 
and  a  party  might  disclaim  a  freehold  hj  jmrol  ;{d)  and  the  doctrine  has 
been  sanctioned  by  an  actual  decision  of  Sir  A.  Hart,(e)  and  by  the 
apparent  approbation  of  other  judges. (/) 

It  was  laid  down  in  Butler  and  Baker's  case,  that  estates  limited  under 
the  statute  of  uses  were  to  be  disclaimed  with  the  same  formalities  as 
estates  at  common  law  •,{g)  but  Lord  Eldon  doubted  whether  a  party 
coidd  disclaim  in  the  case  of  a  conveyance  to  uses,  except  by  release  with 
intent  of  disclaimer  :  however,  his  lordship  added,  he  was  aware  that 
such  a  doctrine  would  shake  titles  innumerable. (A) 

It  seems  to  be  clearly  established,  that  a  disclaimer,  even  by  parol 
declaration,  will  suffice  to  devest  the  legal  estate,  when  the  trust  pro- 
perty is  a  mere  chattel  interest. (i^ 

Whether  a /erne  covert  could,  under  the  Fines  and  Kecoveries  Act, 
disclaim  an  interest  in  real  estate,  was  by  the  terms  of  the  statute,  left 
doubtful;  the  act  enabling  her  only  to  <' dispose  of,  release,  surrender, 
or  extinguish"  any  estate  or  power  as  if  she  were  a  feme  soIe.{Jc)  In  the 
Irish  Act,  4  &  5  W.  4,  c.  92,  s.  68,  the  word  "  disclaim"  was  expressly 
introduced ;  and  now,  by  8  &  9  Vict.  c.  106,  s.  7,  a  married  woman  is 
enabled,  in  like  manner,  to  ''  disclaim"  any  estate  or  interest  in  lands  in 
England. 

*The  effect  of  disclaimer  by  a  trustee  is  to  vest  the  whole  r*237'l 
legal  estate  in  the  co-trustee 3 (?)  and,  as  regards  the  exercise  of  L  "_  -• 
the  office,  even  if  the  trust  be  accompanied  with  a  power,  as,  of  signing 
receipts,  the  continuing  trustee  may  administer  the  trust  without  the 
concurrence  of  the  trustee  who  has  chosen  to  renounce,  and  without  the 
appointment  of  a  new  trustee.(?Ji)     The  settlor,  it  is  said,  must  be  pre- 

(a)  Butler  and  Baker's  case,  3  Re.  26,  b. 

(6)  Townson  v.  Tickell,  3  B.  &  A.  31 ;  Begbie  v.  Crook,  2  Bing.  N.  S.  70;  b. 
C.  2  Scott,  128. 

(c)  Townson  v.  Tickell,  3  B.  &  A.  36.  o       ,     .. 

{d)  lb.  38,  citing  Bonifant  v.  Greenfield,  Cr.  El.  80  ;  and  see  Doe  v.  Smyth,  9 

'(e)  Bingham  v.  Clanmorris,  2  Moll.  253.  And  see  Creed  v.  Creed,  2  Hog.  215  ; 
Re  Ellison's  trust,  1  Jur.  N.  S.  62.  ,  ,      ^     ^^ 

(/)  See  Doe  v.  Harris,  16  M.  &  W.  517.  (s)  3  Re.  2(,  a. 

(h)  Nicloson  V.  Wordsworth,  2  Sw.  372. 

(i)  Shepp.  Touch.  285:  Butler  and  Baker's  case,  3  Re.  26,  b,  27,  a;  bmith  v. 
Wheeler,  1  Vent.  130 ;  S.  C.  2  Keb.  774 ;  Doe  v.  Harris,  16  M.  &  W.  520,  521,  per 
Parke,  B. 

(k)  3  &  4  W.  4   c.  74  s.  77. 

(l)  Bonifant  T.  Greenfield,  Cr.  El.  80;  Crewe  v.  Dicken,  4  Yes.  100,  per  Lord 
Loughborough;  Small  v.  Marwood,  9  B.  &  C.  299  ;  Freem.  13,  case  111 :  Hawkins 
V.  Kemp,  3  East,  410  ;  Townson  v.  Tickell,  3  B.  &  A.  31  ;  Browell  v.  Reed,  1  Hare, 
435,  per  Sir  J.  Wigram ;  and  see  Nicloson  v.  Wordsworth,  2  Sw.  369. 

(m)  Adams  v.  Taunton,  5  Mad.  435  ;  Cooke  v.  Crawford,  13  Sim.  96 ;  Bayley  v. 
Gumming,  10  Ir.  Eq.  Rep.  410 ;  Hawkins  v.  Kemp,  3  East,  410. 


242       LEWIX  ON  THE  LAW  OF  TRUSTS,  ETC. 

sumecl  to  know  what  the  legal  consequences  of  the  death  or  disclaimer  of 
some  of  the  trustees  would  be ;(??)  and  when  the  disclaimer  has  been 
executed,  it  operates  retrospectively,  and  makes  the  other  trustee  the 
sole  trustee  ah  initio. (y) 

But  in  personal  contracts  the  rule  is  different,  for  where  A.  covenants 
with  B.,  C,  and  D.  as  trustees,  and  B.  disclaims,  C.  and  B.  do  not  take 
the  joint  covenant,  and  cannot  sue  without  B.(2>) 

If  trustees  are  also  appointed  protectors  of  the  settlement,  and  they 
intend  to  disclaim  the  protectorship,  the  deed  of  disclaimer  must,  by  the 
Fines  and  Recoveries  Act,  be  enrolled  in  chancery.(j) 

II.    Of  Acceptance. 

A  trustee  may  accept  the  office  either  by  signing  the  trust  deed,(r)  or 
by  an  express  declaration  of  his  assent, (.s)  or  by  proceeding  to  act  in  the 
execution  of  the  duties  of  the  trust. 

If  a  person  named  as  a  trustee  has,  during  a  long  period,  done  nothing 
at  variance  with  the  acceptance  of  the  office,  the  court,  until  the  contrary 
be  shown,  presumes  that  he  has  accepted  it.(#) 

r*9^8i  *^^  *^®  trustee  execute  the  deed,  he  should  see  that  the  recitals 
L  J  are  correct.  If  it  be  stated,  for  instance,  that  stock  has  been 
transferred  into  the  name  of  the  trustee,  he  should  ascertain  that  such  is 
the  truth,  or  the  court  may  hold  him  liable  for  the  consequences.  How- 
ever, in  a  late  case(?f)  where,  notwithstanding  the  recital  to  the  contrary, 
it  was  suggested  that  no  stock  had  ever  been  in  existence,  the  master  of 
the  rolls  observed,  <'I  cannot  say  that  the  trustees  are  bound  by  the  re- 
cital of  that  fact  contained  in  the  deed.  We  have  had  so  many  instances 
of  parties  representing  that  they  were  entitled  to  particular  property,  and 
which  representation  has  afterwards  turned  out  to  be  wholly  untrue,  that 
it  would  be  unjust  and  dangerous  to  bind  third  parties  by  such  represen- 
tations ;  and  I  am  not  aware  that  it  has  ever  been  held  that  trustees  are 
bound  by  the  representations  of  parties  about  to  be  married,  of  the  state 
of  their  property.  I  do  not,  therefore,  accede  to  the  argument,  that  the 
recital  alone  binds  the  trustees." 

With  respect  to  the  liabilities  of  the  trustee,  it  is  perfectly  immaterial 
to  him  whether  he  declare  his  acceptance  of  the  office  or  his  consent  be 
implied,  for  in  each  case  the  obligations  imposed  upon  him  are  precisely 
the  same.(v)  In  the  event  of  a  breach  of  trust  the  consequences  to  the 
parties  beneficially  interested  may  admit  of  a  slight  variation.  A  breach 
of  trust  creates  per  se  a  simple  contract  debt  only;(«6-)  but,  if  the  trustee 

(n)  Browell  v.  Reed,  1  Hare,  435,  per  Sir.  J.  Wigram. 

(o)  Peppercorn  v.  Wayman,  5  De  Gex  &  Smale,  230. 

(p)  Wetherell  v.  Langston,  1  Exch.  G34.  (^)  3  &  4  W.  4,  c.  74,  s,  32. 

(r)  See  Buckeridge  v.  Glasse,  1  Cr.  &  Ph.  131,  134. 

(s)  See  Doe  v.  Harris,  16  Mees.  &  W.  517. 

(t)  In  re  Uniacke,  1  Jon.  &  Lat.  1 ;  In  re  Needham,  ib.  34  ;  and  see  James  v. 
Frearson,  1  Y.  &  C.  Ch.  Ca.  370;  Doe  v.  Harris,  16  M.  &  W.  522. 

(?i)  Bateman  v.  Hotchkin,  10  Beav.  418.  I  have  been  informed  by  one  of  the 
counsel  in  the  cause  that  in  Bliss  v.  Bridgwater,  at  the  rolls,  many  years  ago.  Sir 
J.  Leach  held  differently ;  and  see  Gore  v.  Bowser,  3  Sm.  &  Gif.  6. 

(V)  See  Lord  Montfort  v.  Lord  Cadogan,  19  Ves    638. 

(w)  Vernon  v.  Vawdry,  2  Atk.  119  ;  S.  C.  Barn.  280  :  Cox  v.  Bateman,  2  Yes. 
1 J  ;  Kearnan  v.  Fitzsimon,  3  Ridg.  P.  C.  18. 


OF    DISCLAIMER    AND    ACCEPTANCE    OF    TRUST.      243 

has  agreed,  under  liis  hand  and  seal,  to  execute  the  trust,  this  amounts 
to  a  covenant  even  though  the  heirs  be  not  named,  and  the  breach  of 
trust,  thus  becoming  a  specialty  clcht,  will,  in  legal  assets,  take  precedence 
of  simple  contract  debts. (a:)  However  the  mere  fact  of  a  trustee  being 
made  a  party  to  and  executing  a  deed  appointing  him  to  that  office,  will 
not  of  itself  amount  *to  a  covenant  on  his  part  to  execute  the  |-^_^„  -^ 
trusts,  if  the  deed  do  not  contain  any  words  which  can  be  con-  L  ~  J 
strued  a  covenant  at  law;(y)  and  if  the  deed  do  contain  such  words, 
yet  the  trustee  cannot  be  sued  upon  covenant  if  he  has  not  executed  the 
deed  ;  though,  of  course,  after  accepting  the  trust  he  will  be  liable  for  a 
breach  of  contract,  as  for  a  simple  contract  debt.(i')  Khe  has  executed 
the  deed,  it  is  not  necessary,  in  order  to  make  it  a  covenant,  that  there 
should  be  the  words  covenant  ov  agree,\)ui  the  word  declare  will  suffice. (o) 
If  the  trustee  has  covenanted  for  himself  and  his  heirs,  a  remedy  then 
lies  at  common  law  against  the  heir  in  respect  of  estates  descended ;  and 
by  3  W.  &  M.  c.  14,  the  like  remedy  was  enacted  against  the  devisees 
of  the  debtor ;  but  this  was  only  where  the  specialty  would  have  sup- 
ported an  action  of  debt,  as  in  the  case  of  a  bond,  and  did  not  apply  to  a 
covenant  by  which,  not  a  debt  was  created,  but  damages  were  recover- 
able ;(i)  but  the  11  Gr.  4,  and  1  Gul.  4,  c.  47,  has  now  perfected  the  re- 
medy by  extending  it  to  the  case  of  a  covenant.  A  still  more  recent 
statute(c)  has  declared  that  the  lands  of  a  debtor  shall  be  liable  to  all  his 
debts,  whether  on  simple  contract  or  on  specialty;  but  specialties,  where 
the  heir  is  bound,  are  still  made  to  take  precedence  of  simple  contract 
debts,  and  specialties  where  the  heir  is  not  bound. 

What  acts  of  a  person  nominated  as  trustee  will  amount  to  a  construc- 
tive acceptance  of  the  office,  is  a  question  constantly  arising,  and  not 
easily  to  be  determined  by  any  general  rule. 

If  a  person  named  as  executor  take  out  in-obate  of  the  will,  he  thereby 
constitutes  himself  executor,  and  incurs  all  the  liabilities  annexed  to  the 
office. (fZ)  But  it  was  held  in  one  *case,  that  A.  having  after  pro-  r^.7  <  n-i 
bate  received  part  of  the  assets  transmitted  to  him  by  the  post,  L  "  J 
and  handed  over  the  money  to  B.,  the  acting  executor,  was  not  liable; 
the  receipt  by  A.,  in  the  first  instance,  not  being  his  own  act,  and  the 
transmission  to  B.  being  merely  consequent  upon  the  receipt.(e) 

If  the  office  of  executor  is,  by  the  will,  clothed  with  certain  trusts,  it 
is  not  competent  to  a  person  named  as  executor  to  prove  the  will  and 

(z)  Wood  V.  Hardisty,  2  Coll.  542;  Gifford  v.  Manley,  For.  109:  Mavor  \. 
Davenport,  2  Sim.  227  ;  Benson  v.  Benson,  1  P.  W.  131 ;  Deg  v.  Deg,  2  P.  W.  414: 
Turner  v.  Wardle,  7  Sim.  80 ;  Primrose  v.  Bromley,  1  Atk.  89 ;  Cummins  v.  Cum- 
mins, 3  Jones  &  Lat.  64;  see  Baily  v.  Ekins,  2  Dick.  632. 

{y)  Adey  v.  Arnold,  2  De  Gex,  Mac.  &  Gord.  433;  Wynch  v.  Grant,  2  Drewry, 
312.  It  appears  from  the  latter  case,  that  in  Adey  v.  Arnold,  the  trustee  had 
executed  the  deed,  a  circumstance  not  mentioned  in  the  report  of  Adey  v.  Arnold. 

(z)  Richardson  v.  Jenkins,  1  Drewry,  477;  Vincent  v.  Godson,  1  Sm.  &  Gif.  384. 

(a)  Richardson  v.  Jenkins,  ubi  supra;  and  see  Saltoun  v.  Houston,  1  Bing.  N. 
C.  433  ;  Cummins  v.  Cummins,  3  Jones  &  Lat.  64;  8  Jr.  Eq.  Rep.  723. 

{b)  Wilson  V.  Knubley,  7  East,  127.  (c)  3  &  4  W.  4,  c.  104. 

[d)  Booth  v.  Booth,  1  Beav.  125  ;  Ward  v.  Butler,  2  Moll.  533,  per  Lord  Man- 
ners;  Stiles  V.  Guy,  1  Mac.  &  Gord.  431,  per  Lord  Cotteuham  ;  Scully  v.  Delany, 
2  Ir.  Eq.  Re.  165. 

(e)  Balchen  v.  Scott,  2  Ves.  jun.  678. 


244       LEWIX  ON  THE  LAW  OF  TRUSTS,  ETC. 

thereby  make  himself  an  executor,  and  then  to  reject  the  obligations  that 
are  knit  to  the  office.  Thus,  if  a  testator  direct  that  his  "  executors  " 
shall  get  in  certain  outstanding  effects  to  be  applied  to  a  particular  pur- 
pose, a  person  cannot  make  himself  executor  by  proving  the  will,  and 
refuse  the  trusts. (/) 

And  if  an  executor  be  also  designated  as  trustee  of  the  real  estate,  he 
cannot  desert  the  situation  of  trustee,  and  accept  only  that  of  executor, 
for  the  acting  as  executor  is  an  acceptance  of  the  entire  trusteeship. (^) 

And  if  a  person,  by  the  same  instrument,  be  nominated  trustee  of  two 
distinct  trusts,  he  cannot  divide  them,  but  if  he  accept  the  one,  he  will 
be  deemed  to  have  accepted  the  other,  (/i) 

And  if  an  executor  act  in  any  part  of  the  executorship,  as  by  signing  a 
power  of  attorney  to  get  in  part  of  the  testator's  estate,(<')  he  brings  down 
the  whole  burden  upon  him,  though  at  the  time  of  acting  he  disclaim 
the  intention  of  assuming  the  office  generally. (/c) 

If  A.  be  named  as  executor  arid  trustee,  and  he  renounces  probate 
and  disclaims  the  trust,  and  B.  takes  out  letters  of  administration  with 
the  will  annexed ;  B.,  though  he  thus  becomes  the  personal  representa- 
tive, is  not  also  trustee  in  any  other  sense  than  as  holding  the  surplus 
assets  after  the  ordinary  administration,  with  notice  of  a  trust.  A  pro- 
,^  per  trustee  can  only  be  appointed  by  the  institution  of  a  suit  for 
L  "^  J  *the  purpose,  unless  such  a  case  was  specially  provided  for  by 
the  power  of  appointment  contained  in  the  will. 

If  a  person  be  named  as  trustee  in  a  settlement,  but  he  does  not 
execute  it  and  declines  to  act ;  he,  of  course,  will  not  be  deemed  to  have 
accepted  the  trust  by  merely  taking  the  settlement  into  his  custody  until 
a  trustee  can  be  found. (^) 

Any  voluntanj  interference  xcith  the  assets,  whether  with  or  without 
probate,  will  stamp  a  person  as  acting  executor.  Thus,  where  of  four 
executors  one  only  proved,  and  the  other  three  gave  a  letter  of  attorney 
describing  themselves  as  executors  to  the  fourth,  described  as  acting 
executor,  to  receive  a  quantity  of  stock,,  Lord  Hardwicke  ruled  that  the 
whole  number,  by  this  conduct,  had  drawn  upon  themselves  the  burden 
of  the  executorship. (m) 

So  the  joining  in  an  assignment  of  the  testator's  lease,(n)  or  the 
bringing  an  action  in  the  course  of  executing  the  trust, (o)  is  an  accep- 
tance of  the  office,  and  an  executor  and  trustee  for  sale  will  be  deemed 
to  have  acted  in  the  trust,  if  the  property  be  sold  by  direction  of  the 
trustees,  and  he  is  present,  and  takes  part,  and  exercises  authority  or 
ownership  by  giving  orders  respecting  the  sale,  and  afterwards  calls  on 
a  co-executor  to  inquire  into  the  state  of  the  testator's  accounts. (^) 

(/)  Mucklow  T.  Fuller,  Jac.  198;  and  see  Booth  v.  Booth,  1  Beav.  125;  "Williams 
V.  Nixon,  2  Beav.  472. 

iC/)  Ward  V.  Butler,  2  Moll.  533.  (h)  Urch  v.  Walker,  3  M.  &  C.  702. 

(«)  Cummins  v.  Cummings,  8  Ir.  Eq.  Rep.  723. 

(k)  Doyle  v.  Blake,  2  Sch.  &  Lef.  231 ;  but  see  Malzy  v.  Edge,  2  Jur.  N.  S.  80. 

{I)  Evans  v.  John,  4  Beav.  35. 

(m)  Harrison  v.  Graham,  3  Hill's  MSS.  239 ;  S.  C.  cited  Churchill  v.  Lady 
Hobson,  1  P.  W.  241,  note  (y),  6th  ed.;  White  v.  Barton,  18  Beav.  192. 

{71)  Urch  V.  Walker,  3  M.  &  Cr.  T02.  (o)  Montfort  v.  Cadogan,  17  Ves.  489. 

{}>)  James  v.  Frearson,  1  Y.  &  C.  Ch.  Ca.  3T0 ;  see  375,  377. 


OF    DISCLAIMER    AND    ACCEPTANCE    OF    TRUST.      245 

In  Orr  v.  Newton/j)  A.,  one  of  six  executors,  admitted  in  his  answer 
that  during  the  life  of  B.,  another  of  the  executors,  and  who  had  alone 
taken  out  probate,  he  had  assisted  in  writing  letters  to  the  co-executors 
towards  collecting  the  testator's  estate,  and  it  was  proved  that  A.  had 
written  on  behalf  of  himself  and  his  co-executors  to  a  debtor  of  the 
testator  requiring  payment.  Lord  Camden,  notwithstanding  the  circum- 
stances, observed  in  his  argument,  that  "  B.  undertook  to  act  solely,  and 
did  act  soleli/  until  he  died,"  implying  that  A.  had,  by  his  conduct,  not 
assumed  the  character  of  executor.  But  the  case  *was  one  of  r*242-l 
ii  cruel  persecution"  against  A. ;  and  his  lordship  put  the  fairest  L  "^  --J 
possible  construction  upon  all  that  A.  had  done  :  and  besides.  Lord 
Camden  might  only  have  meant  that  B.  was  suhstantially  the  sole  acting 
executor,  without  adverting  to  the  question,  whether  the  interference 
of  A.  ought  not,  in  strict  legal  construction,  to  be  held  an  acceptance  of 
the  executorship. 

The  rule,  that  every  voluntary  interference  with  the  subject-matter 
will  convert  a  person  into  a  trustee,  must  be  taken  with  this  qualifica- 
tion, that  the  interference  is  not  such  as  to  he, plainly  referrible  to  some 
other  ground  than  the  part  execution  of  the  trust.  Thus  A.,  B.,  and 
C.  were  named  as  executors  and  trustees,  and  A.  alone  proved  the  will 
and  administered,  and  sold  certain  chattels  to  B.,  and  afterwards  applied 
to  B.  as  the  friend  of  the  family  for  advice ;  B.  in  consequence  nego- 
tiated the  sale  of  the  testator's  property,  and  became  a  purchaser  of  part 
himself,  taking  the  conveyance  from  A.  the  tenant  for  life  and  the  heir-at- 
law,  under  the  impression  that  the  devise  to  A.,  B.,  and  C  (as  B.  and 
C.  did  not  act  in  the  trust)  had  become  inoperative.  On  A.'s  death  B. 
expressly  renounced  the  executorship.  A  bill  was  filed  under  these  cir- 
cumstances against  B.,  as  having  acted  in  the  trust,  and  misconducted 
himself  in  that  character  ;  but  Sir  J.  Leach  was  clearly  of  opinion,  that 
"  B.  had  never  interfered  with  the  property,  except  as  the  friend^  or 
agent  of  the  widow.  It  was  true  he  had  never  executed  a  deed  disclaim- 
ing the  trust,  but  his  conduct  had  disclaimed  the  trust.  In  the  purchase 
of  "the  small  real  estate  made  by  him  he  had  taken  by  feoffment  from 
the  widow  and  eldest  son  of  the  testator,  in  whom  the  estates  could  only 
have  vested  by  the  disclaimer  of  the  trustee;"  and  his  honor  dismissed 
the  bill  with  costs. (r) 

But  if  a  trustee  act  ambiguously  he  cannot  afterwards  take  advantage 
of  the  doubt,  and  say  he  acted  not  as  trustee,  but  in  some  other  charac- 
ter. Thus,  a  testator  devised  that  the  produce  of  a  plantation  should  be 
consigned  to  A.  and  be  employed  by  him  upon  certain  trusts,  and  A. 
with  full  notice  *of  the  will  received  the  produce  of  the  estate,  |-*243-| 
and  then  pleaded  that  he  had  been  acting  merely  as  factor  or  L  ^ 
agent ;  but  Lord  Hardwicke  said  it  was  incumbent  on  the  trustee  if  he 
would  not  have  acted  to  have  refused,  and  not,  going  on  in  that  ambig- 
uous way,  to  leave  himself  at  liberty  to  say  he  acted  as  trustee  or  not.(s) 

(q)  2  Cox,  274:  see  Lowry  v.  Fulton,  9  Sim.  122. 

(r)  Stacey  v.  Elph,  1  M.  &  K.  195;  and  see  Dove  v.  Everard,  1  Russ.  &  Myln. 
231 ;  S.  C.  Tanil.  376 :  Lowry  v.  Fulton,  9  Sim.  115. 

(s)  Conyngham  v.  Conyngham,  1  Yes.  522  ;  Montgomery  v.  Johnson,  11  Ir.  Eq. 
Rep.  476;  see  Lowry  v.  Fulton,  9  Sim.  115  ;  Doe  t.  Harris,  16  M.  &  "W.  517. 


246       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

Upon  the  question  of  acceptance  or  non-acceptance  of  the  office,  of 
course  parol  evidence  is  admissible  as  on  any  other  issue. (^) 

Where  a  fund  is  given  to  a  person  upon  certain  trusts,  and  he  is  ap- 
pointed executor,  as  soon  as  he  has  severed  the  legacy  from  the  general 
assets,  and  appropriated  it  to  the  specific  purpose,  he  dismisses  the  charac- 
ter of  executor,  and  assumes  that  of  trustee.(i<)  Indeed  the  assent  of 
the  executor  to  the  legacy,  however  proved,  converts  him  into  a  trustee. (v) 
If  a  person  be  asked  and  consent  to  become  a  trustee  of  a  marriage- 
settlement,  and  thereupon  his  name  is  introduced  into  articles  as  the  basis 
of  the  settlement,  he  may  sue  the  parties  bound  by  the  articles  for  specific 
performance,  though  he  may  not  have  executed  any  written  instrument 
declaratory  of  his  acceptance  of  the  trust. (m-) 

As  soon  as  a  trustee  has  accepted  the  office,  he  must  bear  in  mind 
that  he  is  not  to  sleep  upon  it,  but  is  required  to  take  an  active  part  in 
the  execution  of  the  trust.  The  law  knows  not  such  a  person  as  u passive 
trustee.  If,  therefore,  an  unprofessional  person  be  associated  in  the  trust 
with  a  professional  one,  he  must  not  argue,  as  is  often  done,  that  because 
the  solicitor  is  better  acquainted  with  business  and  with  legal  technicali- 
ties, the  administration  of  the  trust  may  be  safely  confided  to  him,  and 
that  the  other  need  not  interfere  except  by  joining  in  what  are  called 
formal  acts.  *If  he  sign  a  power  of  attorney  for  sale  of  stock, 
L  ""  J  or  execute  a  deed  of  reconveyance  on  repayment  of  a  mortgage 
sum,  he  is  as  answerable  for  the  money  as  if  he  were  himself  the  solici- 
tor and  had  the  sole  management  of  the  transaction. 

Again,  when  a  trustee  has  entered  upon  the  trust,  he  is  bound  at  once 
to  acquaint  himself  with  the  nature  and  particular  circumstances  of  the 
property,  and  to  take  such  steps  as  may  be  necessary  for  the  due  protec- 
tion of  it.  Thus  he  is  not  liable  for  the  defaults  of  any  predecessor  in 
the  trust,  but  if  the  fund  is  in  danger,  and  not  in  the  state  in  which  it 
ought  to  be,  the  court  will  presume  him  to  have  made  proper  inquiries, 
and  will  hold  him  responsible  if  he  does  not  take  such  measures  as  may 
be  called  for.  (a-) 

So  a  trustee  of  chattels  personal  for  the  separate  use  of  a  wife  must 
take  care,  on  accepting  the  trust,  to  have  the  efi"ects  ascertained  by  a 
proper  inventory,  or  in  a  suit  for  an  account  of  the  trust  estate  he  may 
be  deprived  of  his  costs. (?/) 

If  part  of  the  original  trust  estate  is  supposed  to  be  lost,  or  is  not  forth- 
coming, the  court  will  not  appoint  new  trustees  of  the  residue,  so  as  to 
make  them  partial  trustees  only,  but  will  appoint  them  trustees  generally, 
and  if  required  will  at  the  same  time,  for  the  protection  of  the  trustees, 
direct  an  inquiry  whether  any  part  of  the  trust  fund  has  been  lost,  and 
what  steps  should  be  taken  for  its  recovery.(^) 

it)  See  James  v.  Frearson,  1  Y.  &  C.  Ch.  Ca.  370. 

(«)  PMllipo  V.  Miinnings,  2  M.  &  C.  309 ;  Byrchall  v.  Bradford,  6  Mad.  13  ;  S. 
C.  ib.  235 ;  Ex  parte  Dover,  5  Sim.  500 ;  Ex  parte  Wilkinson,  3  Mont.  &  Ayr.  145; 
See  Wilmott  v.  Jenkins,  1  Beav.  401. 

(y)  Dix  V.  Burford,  19  Beav.  409.  {lo)  Cook  v.  Fryer,  1  Hare,  498. 

[x)  See  Townley  v.  Bond,  2  Conn.  &  Laws.  405 ;  James  v.  Fearson,  1  Y.  &  C. 
Ch.  Ca.  370  ;  and  see  Malzy  v.  Edge,  2  Jur.  N.  S.  80;  but  quiere. 

{y)  England  v.  Downs,  6  Beav.  269;  see  279. 

(z)  Bennett  v.  Burgis,  5  Hare,  295. 


OF    THE    LEGAL    ESTATE    IN    THE    TRUSTEE.  247 

We  may  add  in  conclusion,  that  if  a  person  by  mistake  or  otlierwise 
assume  tlie  character  of  trustee,  when  it  really  does  not  belong  to  him, 
he  may  be  called  to  account  by  the  cestuts  que  trust,  for  the  moneys  he 
received  under  the  colour  of  the  trust.  Thus,  when  a  testator  devised 
an  estate  to  W.  Thompson  upon  certain  trusts,  with  a  power  of  sale  to 
him,  his  heirs  and  assigns,  and  the  trustee  devised  all  his  real  estates  to 
his  sister,  Grace  Thompson,  charged  with  50?.  to  his  friend  Watson,  and 
died,  leaving  his  brother  Jonas  Thompson  his  heir-at-law,  and,  on  the 
death  of  the  trustee,  *Grace  Thompson  assuming  to  be  devisee,  r*245-i 
sold  the  estate  and  received  the  money  and  paid  it  wrongfully  L  J 
to  the  tenant  for  life ;  in  a  suit  against  the  representative  of  Grace 
Thompson,  the  court  held,  although  she  was  neither  heir  nor  devisee,  yet 
as  she  had  acted  as  trustee  and  received  the  money  in  that  character, 
she  was  accountable  for  it  to  the  cestuis  que  trust. (a) 


^CHAPTER   XL  [*246] 

or   THE   LEGAL  ESTATE   IN   THE   TRUSTEE. 

Upon  this  subject  we  propose  to  treat.  First.  Of  vesting  the  legal 
estate  in  the  trustee  ;  Secondly.  Of  the  properties  and  devolution  of  the 
legal  estate ;  and  Thirdly.  Of  the  question  what  persons  taking  the 
legal  estate  will  be  bound  by  the  trust. 

SECTION  I. 

OF   VESTING   THE   LEGAL   ESTATE   IN    THE    TRUSTEE. 

I.  Of  the  legal  estate  in  the  trustee  with  reference  to  the  Statute  of 
Uses. 

In  the  case  of  a  simple  trust,  as  the  statute  of  Henry  the  Eighth 
operates  upon  the  first  use,  whether  designated  in  the  instrument  as  a 
use  or  trust,  if  a  conveyance  or  devise  be  to  A.  and  his  heirs  "  in  trust" 
for  B.  and  his  heirs,  the  possession  will  be  executed  in  B.  •,{aa)  and  the 
statute  must  operate,  notwithstanding  the  intention  of  the  settlor  to  the 
contrary,  for  the  will  of  the  subject  cannot  control  the  express  enact- 
ment of  the  legislature. (6)  In  order,  therefore,  to  prevent  the  legal 
estate  from  being  executed  in  the  cestiii  que  trust,  it  is  necessary  to  vest 

(«)  Rackham  v.  Siddall,  16  Sim.  297  ;  affirmed  by  the  lord  chancellor  on  appeal 
as  to  the  point  under  consideration,  1  Mac.  &  Gord.  607.  ^^    ^   ,    ,         c? 

(aa)  As  in  Austen  v.  Taylor,  1  Ed.  361  ;  Robinson  v.  Grey,  9  East,  1,  &c.  bee 
Brouffhton  v.  Langley,  2  Sallt.  679 ;  Chapman  v.  Blissett,  Gas.  t.  Talb.  150. 

(b)  See  Carwardine  v.  Carwardine,  1  Ed.  36.  In  Gregory  v.  Henderson  4 
Taunt.  772,  Judges  Chambre  and  Gibbs  laid  a  stress  on  the  testator  s  e«?fw<,  but 
Judge  Health  referred  the  case  to  the  true  principle,  viz.  that  the  trustees  having 
a  duty  to  perform,  it  was  a  trust  special,  and  so  out  of  the  statute. 


248 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


in  tlie  trustee  not  only  the  ancient  common  law  fee,  but  also  the  primary 
use,  as,  by  conveying  or  devising  *"  to  the  trustee  and  his  heirs 
C*^"^"^]  to  the  use  of  the  trustee  and  his  heirs," (c)  or  "  unto  and  to  the 
use  of  the  trustee  and  his  heirs  -/'{d)  for  although  by  this  form  of  limita- 
tion the  trustee  will  be  in  by  the  common  law,  yet,  as  the  use  and  the 
possession  are  both  vested  in  the  trustee,  the  trust  over,  as  not  being  the 
primary  use,  will  not  be  affected  by  the  statute. 

But  sjyecial  trusts  are  not  within  the  purview  of  the  act  ;(^)  and  there- 
fore, if  any  agency  be  imposed  on  the  trustee,  as  by  a  limitation  to  A. 
and  his  heirs,  upon  trust  topay  the  rents,(/)  or  to  convei/  the  estate,(r7)  or 
if  any  control  is  to  be  exercised,  or  duty  to  be  performed,  as  in  the  case 
of  a  trust  to  ajJj^Ii/  the  rents  to  a  person's  maintcnance,{h)  or  in  making 
repairsfi)  to  hold  for  the  se2mrateuse  of  a  feme  covert,(^-)  or  to  jyreserve 
contingent  remaindcrs[l)  and  a  fortiori  if  to  raise  a  sum  of  monei/,{vi) 
or  to  disjyose  ofhy  sale,(^)i)  in  all  these  cases  as  the  trust  is  of  a  special 
character,  the"  operation  of  the  statute  of  uses  is  effectually  excluded. 
But  if  an  estate  be  released  by  deed  to  A.  and  his  heirs  "  upon  trust," 
after  the  marriage  of  relessor  '-  for  her  and  her  assigns  for  life,  for  her 
own  sole  and  separate  nse,"  but  no  active  duty  in  respect  of  the  separate 
.„-,  use  is  expressed  to  be  reposed  in  the  trustee  personally,  a  com- 
L  -"^^J  mon  *law  court  rejects  the  sole  and  separate  use  as  an  estate 
known  only  in  equity,  and  holds  the  legal  estate  for  life  to  be  executed 
in  the  relessor.(o) 

And  if  the  trust  be  simply  to  "jyermit  and  suffer  A.  to  receive  the 
rents,"Qj)  the  legal  estate  is  executed  in  A.  However,  if  the  lands  be 
devised  to  three  persons  and  their  heirs  in  trust,  to  permit  A.  to  receive 
the  net  rents  for  her  life  for  her  own  use,  and  after  her  death  to  permit 

(c)  Robinson  v.  Comyns,  Rep.  t.  Talb.  154;  Attorney-General  v,  Scott,  id.  138  ; 
Hopkins  v.  Hopkins,  1  Alk.  589,  per  Lord  Hardwicke. 

{d)  Doe  V.  Passingham,  6  B.  &  C.  305;  Doe  v.  Field,  2  B.  &  Ad.  564 ;  Harris  v. 
Pugh,  12  Moore,  b11  ;  S.  C.  4  Bing.  335;  Rackham  v.  Siddall,  1  Mac.  &  Gord.  GOT. 
(e)  See  Introduction  ;  and  see  Wright  v.  Pearson,  1  Ed.  125  ;  Mott  v.  Buxton,  7 
Ves.  201. 

(/)  Robinson  v.  Grey,  9  East,  1 ;  Symson  v.  Turner,  1  Eq.  Ca.  Ab.  383,  note, 
3d  resolution  ;  Garth  v.  Baldwin,  2  Yes.  G46  ;  Chapman  v.  Blissett,  Cas.  t.  Talb. 
145  ;  Barker  v.  Greenwood,  4  M.  &  Wels.  429 ;  Anthony  v.  Rees,  2  Cr.  &  Jer.  75 ; 
White  V.  Parker,  1  Bing.  N.  C.  5T3  ;  and  see  Doe  v.  Homfray,  6  Ad.  &  Ell.  206  ; 
Kenrick  t.  Lord  Beauclerk,  3  Bos.  &  Pull.  178  ;  Nevil  v.  Saunders,  1  Vern.  415  ; 
Jones  V.  Say  &  Seal,  1  Eq.  Ca.  Ab.  383. 

{g)  Garth  v.  Baldwin,  2  Ves.  646 ;  Doe  v.  Field,  2  B.  &  Ad.  504 ;  Doe  r.  Edlin, 
4  Ad.  &  Ell.  582. 

[h)  Sylvester  v.  Wilson,  2  T.  R.  444 ;  Doe  v.  Edlin,  4  Ad.  &  Ell.  582. 
{i)  Shapland  v.  Smith,  1  B.  C.  C.  75. 

{k)  Harton  v.  Harton,  7  T.  R.  652;  and  see  Nevil  v.  Saunders,  1  Yern.  415  ; 
Jones  V.  Lord  Say  &  Seal,  1  Eq.  Ca.  Ab.  383 ;  Doe  T.  Claridge,  6  Com.  B.  Re.  641. 
(0  Biscoe  v.  Perkins,  1  Y.  &  B.  485  ;  and  see  Barker  v.  Greenwood,  4  M.  &  W. 
431. 

im)  Wright  v.  Pearson,  1  Ed.  110  ;  Stanley  v.  Lennard.  1  Ed.  87. 
(n)  Bagshaw  v.  Spencer,  1  Yes.  142. 
(o)  Williams  v.  Waters,  14  M.  &  W.  166. 

[p)  Boughton  V.  Langley,  1  Eq.  Ca.  Ab.  383;  S.  C.  2  Salk,  679;  overruling  Bur- 
chett  v.  Durdant,  2  Yent.  311 ;  Right  v.  Smith,  12  East,  455  :  Wagstaff  v.  Smith, 
9  Yes.  524,  per  Sir  W.  Grant ;  Gregory  v.  Henderson,  4  Taunt.  773,  per  Heath,  J.; 
Warter  v.  Hutchinson,  5  Moor.  143;  S.  C.  1  B.  &  C.  721  :  Barker  v.  Greenwood,  4 
M.  &  W.  429,  per  Parke.  B. 


OF    THE    LEGAL    ESTATE    IN    THE    TRUSTEE.  249 

B.  to  receive  the  net  rents  for  lierlife  for  her  sole  and  separate  use,  with 
remainder  over  and  a  power  of  sale  to  the  trustees,  it  has  been  held  that 
the  legal  estate  is  in  the  trustees,  for  that  they  are  to  receive  the  rents, 
and  thereout  pay  the  land-tax  and  other  charges  on  the  estate,  and  hand 
over  the  net  rents  only  to  the  tenant  for  life. (5) 

If  the  legal  estate  be  limited  to  the  trustees  cliarged  with  dehts,  and 
subject  thereto  in  trust  for  A.,  but  no  direction  to  the  trustees  personally 
to  pay  the  debts, (r)  here  as  the  trustees  have  no  agency  assigned  to 
them,  but  merely  stand  seised  in  trust,  the  statute  will  operate,  and  exe- 
cute the  possession  in  A. 

And  where  copyholds  were  devised  to  trustees  during  the  minority  of 
the  testator's  son,  "  the  same  to  be  transferred  to  him"  when  he  attained 
twenty-one,  and  if  he  died  under  twenty-one  the  testator  gave  the  estate 
over,  it  was  held  that  the  trustees  took  a  chattel  interest  only,  until  the 
son  attained  twenty-one,  and  that  the  copyholds  then  vested  in  the  son. 
It  was  said,  that  if  the  devise  were  to  the  son  on  attaining  twenty-one 
without  the  intervention  of  trustees,  the  admission  of  the  son  as  tenant 
on  the  rolls  would  operate  as  a  transfer  of  the  estate,  and  that  the  words 
"  the  same  to  be  transferred"  did  not  imply  that  the  trustees  were  to 
transfer  *the  legal  estate. (s)  This  construction  appears  some-  1-^9^01 
what  forced,  as  the  estate  is  not  transferred  by  the  admission,  L  -"  J 
but  by  the  surrender.  However,  the  estate  remains  in  the  surrenderor 
iintil  the  admission  of  the  surrenderee,  though  it  then  operates  retro- 
spectively from  the  date  of  the  surrender. 

Where  the  trust  was  "  to  pay  unto  or  permit  and  suffer  a  person  to 
receive"  the  rents,  as  the  former  words  would  have  created  a  special 
trust,  and  the  latter  would  have  been  construed  a  use  executed  by  the 
statute,  the  court  determined,  for  want  of  a  better  reason,  that  the  former 
or  latter  words  should  prevail,  as  the  instrument^  in  which  they  were 
found,  happened  to  be  a  deed  or  a  will.(i!) 

II.  Of  the  legal  estate  in  the  trustee  as  governed  by  the  object  and 
scope  of  the  trust. 

As  legal  limitations  are  properly  cognisable  by  a  common-law  court,  it 
might  naturally  be  supposed  that  the  construction  put  upon  the  instru- 
ment would  stand  wholly  unaffected  by  the  circumstance  of  the  creation 
of  the  trust.  But  as  the  effect  of  a  deed  or  will  is  to  be  ruled  by  the 
intention,  and  every  person  in  limiting  an  estate  to  a  trustee  must  be 
guided  by  the  equity  he  proposes  to  raise  upon  it,  the  courts,  as  well  of 
common  law  as  of  equity,  were  necessarily  led  to  enter  upon  the  conside- 
ration of  the  trust,  in  order  to  measure  the  extent  of  the  legal  interest  by 
the  scope  and  object  of  the  equitable. (m) 

The  following  rules  of  construction  have  been  adopted  by  the  courts  in 
reference  to  this  branch  of  our  subject,  and,  except  so  far  as  they  are 

{q)  Barker  v.  Greenwood,  4  M.  &  W.  421 ;  White  v.  Parker,  1  Bing.  N.  C.  573. 

(r)  Kenrick  v.  Lord  Beauclerk,  3  B.  &  P.  175  ;  Jones  v.  Lord  Say  &  Seal,  8  Yin. 
262.  In  this  case  the  remainder  was  given  to  the  trustees  upon  trust  subject  to 
the  annuities,  and  was  held  to  be  executed. 

(s)  Doe  V.  Nicholls,  2  B.  &  Cr.  336.  (t)  Doe  v.  Biggs,  2  Taunt.  109. 

(m)  As  to  the  cognisance  of  trusts  by  a  court  of  law,  see  Sims  v.  Marryat,  17  Q. 
B.  Rep.  292  ;  May  v.  Taylor,  6  Mann,  k  Gr.  2(11. 


250  LEWIX    ox    THE    LAW    OF    TRUSTS,    ETC. 

controlled  by  the  positive  enactments  of  tlie  late  Wills  Act;(«)  must  still 
be  resorted  to  for  guidance. 

First,  Wherever  a  trust  is  created,  a  legal  estate  sufficient  for  the  exe- 
cution of  the  trust  shall,  if  possible,  be  implied :  Secondly,  The  legal 
estate  limited  to  the  trustee  shall  not  be  carried  farther  than  the  complete 
execution  of  the  trust  necessarily  requires. 

1.  To  illustrate  the  first  of  these  rules,  the  court  has  in  *some 
L  "'J  instances  suj;>pUed  tlie  estate  in  toto ;  as  where  a  testator  had 
devised  to  a  feme  covert  the  issues  and  profits  of  certain  lands  to  he  paid 
hy  Ms  exerAitors,  it  was  held  the  land  itself  was  devised  to  the  executors 
in  trust  to  receive  the  rents  and  profits  to  the  use  of  the  wife.(ic) 

If  a  testator  simply  appoint  a  person  his  executor  and  trustee,  it  seems 
the  latter  word  is  not  so  exclusively  applied  to  real  estate,  as  to  carry  by 
implication  to  the  executor  a  devise  of  the  testator's  freeholds,  but  if  the 
testator  direct  certain  acts  to  be  done  by  the  trustee  which  belong  to  the 
owner  of  the  freeholds,  such  a  devise  will  be  implied. (a;^  And  so  if  the 
testator  appoint  a  person  his  "  trustee  of  inheritance,"  which  is  equiva- 
lent to  making  him  the  trustee  of  his  inheritable  property. (//)  And  if  a 
testator  constitute  a  trustee  by  will,  and  devise  the  legal  estate  to  him, 
and  then  by  a  codicil  "  nominates  and  appoints  another  person  to  be 
trustee"  in  his  place,  the  codicil  not  only  confers  the  office  of  the  trustee- 
ship, but  also  carries  the  legal  estate  with  it.  (2;) 

In  other  eases  the  court  has  extended  the  estate,  as  where  the  devise 
was  to  three  trustees,  and  the  survivor  of  them,  and  the  executors  and 
administrators  of  such  survivor,  upon  trust  to  pay  certain  annuities  for 
lives,  it  was  ruled  that  the  trustees  took  an  estate  for  the  several  lives  of 
the  annuitants. {riS 

If  land,  said  Lord  Hardwick,  be  given  to  a  man  without  the  word  heirs, 
and  a  trust  be  declared  which  can  be  satisfied  in  no  other  way  but  by  the 
trustees  taking  an  inheritance,  it  has  been  construed  that  a  fee  passes. (i) 
r*9'=in  Thus  a  trust  to  sell,(c)  *even  on  a  contingency,((:Z)  confers  a  fee 
L  J  simple  as  indispensable  to  the  execution  of  the  trust ;  and  the 
construction  is  the  same  in  a  sale  implied,  as  where  the  devise  is  upon 
trust  out  of  the  rents  and  profits  of  an  estate  to  discharge  certain  legacies 

{v)  1  Yict.  c.  26,  ss.  30,  31, 

{■w)  Bush  V.  Allen,  5  Mod.  63 ;  Doe  v.  Homfray,  6  Ad.  &  Ell.  206 ;  and  see  Gates 
V.  Cooke,  3  Bur.  1684  ;  Sir  W.  Black.  543  ;  Doe  v.  Woodhouse,  4  T.  R.  89. 

ix)  Gates  v.  Cooke,  3  Burr.  1684  ;  Bush  v.  Allen,  5  Mod.  63  ;  Anthony  v.  Rees, 
2  Cr.  &  Jer.  75 ;  Doe  v.  Shotter,  8  Ad.  &  Ell.  905. 

iy)  Trent  v.  Hanning,  1  B.  &  P.  New  Rep.  116 ;  10  Yes.  495  ;  7  East,  95  ;  1  Dow. 
102  ;  Doe  v.  Pratt,  6  Ad.  &  Ell.  180. 

(z)  Re  Hough's  Will,  4  De  Gex  &  Sm.  371. 

(a)  Doe  V.  Simpson,  5  East,  162  ;  and  see  Atcherley  v.  Yernon,  10  Mod.  523  ; 
Gates  V.  Cooke,  3  Bur.  1684;  Shaw  v.  Weigh,  2  Str.  798;  Jenkins  v.  Jenkins, 
Willes,  650.  In  Doe  v.  Simpson  a  life  estate  only  was  implied,  as  the  trustee  was 
merely  such ;  but  in  Jenkins  v.  Jenkins,  the  trustee  being  also  interested  benefici- 
ally, the  construction  was  more  liberal,  and  it  was  thought  the  fee  simple  passed. 
(6)  Villiers  v.  Yilliers,  2  Atk.  72. 

(c)  Shaw  V.  Weigh,  2  Str.  798 ;  Bagshaw  v.  Spencer,  1  Yes.  144,  per  Lord  Hard- 
wicke  ;  and  see  Glover  v.  Monckton,  3  Bing.  13 ;  10  Moore,  453.  As  to  Hawker  v. 
Hawker,  3  B.  &  Aid.  537,  and  Warter  v.  Hutchinson,  5  Moore,  143,  S.  C.  1  B.  &  C. 
721,  see  remarks  infra,  pp.  256,  257. 

((f)  Gibson  v.  Lord  Montfort,  1  Yes.  485,  see  p.  491. 


OF    THE    LEGAL    ESTATE    IN    THE    TRUSTEE.  251 

made  payable  at  a  day  inconsistent  witli  tlie  application  of  tlie  annual 
profits  only.((') 

But  a  power  of  selling  will  not  be  implied  by  a  limitation  to  a  trustee,  or 
to  a  trustee  his  executors  and  administrators,  upon  trusts  to  pay  debts  and 
legacies  generally,(/)  or  (seynhle)  to  raise  a  sum  of  money.(;7)  In  sucli 
cases,  where  nothing  in  the  context  implies  the  limitation  of  the  fee,  a 
chattel  interest  only  will  pass.  But,  if  a  greater  estate  be  limited  expressly, 
as  by  a  devise  to  A.  and  his  heirs  upon  trust  to  pay  debts,  the  court  has  no 
jurisdiction  to  cut  down  the  expression  and  reduce  the  estate  to  a  chat- 
tel,(/i)  though  if  a  chattel  interest  be  carved  out  of  the  fee  and  be  so 
limited,  the  word  "heirs"  may  be  rejected  as  inconsistent  with  the  estate, 
as  where  lands  are  devised  to  trustees  and  their  heirs,  until  an  infant 
attains  twenty-one,  and  then  to  the  infant  in  fee.(i) 

If  an  estate  be  granted  to  two,  and  the  survivor  of  them,  and  the  heirs 
of  such  survivor,  they  are  not  joint  tenants  in  fee,  but  take  a  freehold  for 
their  joint  lives,  with  a  contingent  remainder  to  the  one  that  may  happen 
to  survive.  The  same  construction  will  be  put  upon  a  devise  expressed 
simply  in  the  same  terms  without  any  trust  annexed,  or  even  if  there  be 
*a  trust,  provided  the  nature  of  it  do  not  require  the  fee  simple  r^9r9-i 
to  be  vested  in  the  trustees.  (^-)  But  if  such  a  devise,  even  to  L  "^  ""J 
beneficiaries,  be  coupled  with  words  pointing  to  a  joint  tenancy,  that 
construction  will  be  adopted,  as  if  the  gift  be  to  two  and  the  survivor  of 
them  and  their  heirs,(Z)  or  to  them  as  joint  tenants,  and  the  survivors 
and  survivor  of  them,  and  the  heirs  and  assigns  of  such  survivor.  (??^) 
And  if  the  devise  be  to  two  and  the  survivor  of  them,  and  the  heirs  of  such 
survivor,  upon  trusts  that  require  the  fee  simple  to  be  vested  in  the 
trustees,  or  upon  trust  for  sale,  the  prevailing  opinion  is,  that  notwith- 
standing the  old  case  of  Vick  v.  Edwards(7i)  to  the  contrary,  the  courts 
would  compel  a  purchaser  to  accept  a  title  on  the  assumption  that  the 
trustees  took  the  fee  simple.(o)  "Whatever  doubts,"  observes  Butler, 
"were  formerly  entertained,  it  now  appears  to  be  the  settled  opinion  of 
the  profession  that  a  devise  to  two  and  the  survivor  of  them,  and  the 
heirs  and  assigns  of  such  survivor,  enables  the  trustees  to  vest  the  fee  iu 
the  purchaser,  and  that  titles  under  such  a  devise  are  accepted  with  a 
conveyance  from  the  trustees  and  without  the  concurrence  of  the  heir."(^) 
2.  To  illustrate  the  second  rule,  if  an  estate  be  devised  to  A.  and  his 
heirs  upon  trust  io  permit  B.  to  receive  the  rents  during  his  life,  and  on 

(e)  Gibson  v.  Lord  Montfort,  1  Ves.  485. 

(/)  Co.  Lit.  42  a;  Cordal's  case,  Cr.  El.  315;  Carter  v.  Barnadiston,  1  P.  W. 
505;  Hilchins  v.  Hilchins,  2  Vern.  403;  Doe  v.  Simpson,  5  East,  171,  per  Lord 
Ellenborough,  C.  J. ;  Roberts  v.  Diswell,  1  Atk.  609,  per  Lord  Hardwicke. 

{g)  Doe  V.  Simpson,  5  East,  162  ;  and  see  Bosworth  v.  Forard,  0.  Bridg.  Rep. 
167  ;  Thomason  v.  Mackworth,  id.  507;  Co.  Lit.  42  a,  note  (7),  Butler's  ed. 

(h)  Wright  V.  Pearson,  1  Ed.  119,  see  p.  123. 

(?)  Goodtitle  v.  Whitbv,  1  Burr.  228 ;  Doe  v.  Lea,  3  T.  R.  41  ;  Warter  v.  Hutcli- 
inson,  1  B.  &  C.  721 ;  and  see  Ackland  v.  Lutlej,  9  Ad.  &  Ell.  879;  but  see  Le- 
thieullier  v.  Tracy,  3  Atk.  780,  Fearne's  C.  R.  226,  Butler's  note. 

[k)  Re  Harrison,  3  Anst.  836. 

[I)  Doe  v.  Sotheron,  2  Bar.  &  Ad.  628  ;  Oakley  v.  Young,  2  Eq.  Ca.  Ab.  537. 

Im)  Goodtitle  v.  Layman,  Fearne's  C.  R.  358.  («)  3  P.  W.  372. 

(o)  See  Doe  v.  Ewart,  7  Ad.  &  Ell.  636  :  Doe  v.  Sotheron,  2  Bar.  &  Ad.  628. 

i^p)  Co.  Lit.  191  a.  note  1 ;  and  see  Fearne's  C.  R.  358. 


252  LEWIX    ON    THE    LAW    OF    TRUSTS,    ETC. 

his  death  to  convey  to  C.  in  fee,  here  the  legal  estate  for  the  life  of  A.  is 
vested  in  B.,  and  the  remainder  only  in  the  trustee. (5)  On  the  other 
hand,  if  an  estate  be  devised  to  A.  and  his  heirs  in  trust  to  pay  the  rents 
to  B.  for  his  life,  and  on  his  death  the  testator  devises  the  estate  to  C.  in 
fee,  here  the  legal  estate  for  the  life  of  B.  is  in  the  trustee,  and  the  legal 
estate  in  the  remainder  is  vested  in  C.(>')  So  where  a  copyhold  was 
devised  to  A.  and  his  heirs  upon  trust  for  the  separate  use  of  a  feme 
covert  during  her  *life,  and  after  her  decease  in  trust  as  the  feme 
L  "  -I  should  appoint,  and  in  default  of  appointment  to  the  testator's 
risht  heirs,  it  was  thought  by  Judge  Heath  that  the  trustee  took  a  base 
fee  determinable  on  the  life  of  the  feme,  and  by  Judge  Chambre,  that 
the  devise  amounted  only  to  an  estate  pur  autre  vie.(^s'^  But  it  seems 
that  such  a  limitation  in  a  deed,  where  the  construction  is  narrower, 
would  have  conferred  the  fee  simple. (/) 

So  in  a  devise  to  A.  for  life,  remainder  to  trustees  and  their  heirs  to 
preserve  contingent  remainders  (the  words  "  during  the  life  of  A." 
being  omitted.)  with  remainders  over,  the  trustees  were  construed  to 
take  not  a  fee  simple,  but  an  estate  for  the  life  of  A.(u)  And  Sir  W. 
Grant  expressed  himself  in  favour  of  a  similar  construction  where  the 
instrument  was  a  deed  :(i-)  but  it  has  since  been  decided  that  in  the  latter 
case  a  fee  simple  passes, (?r)  unless  it  be  quite  clear  upon  the  face  of  the 
deed  itself  that  the  words  "  during  the  life  of  A.,"  were  meant  to  be  in  the 
deed,  and  are  wanting  through  inadvertence. (a;)  Of  course  there  can  be 
no  such  restriction  of  the  estate  by  implication  where  the  natural  sense 
of  the  words  admit  of  a  fair  and  reasonable  construction,  as  if  before 
the  late  act  the  fee  in  the  trustees  would  have  supported  any  contin- 
gent limitations  that  would  otherwise  have  been  left  at  the  mercy  of  the 
tenant  for  life.C_y) 

Upon  the  principle  we  are  now  considering,  if  the  legal  estate  be 
given  to  trustees,  and  their  heirs,  upon  a  trust  not  executed  by  the  sta- 
tute during  the  life  of  A.,  and  after  A.'s  decease  to  uses  in  strict  settle- 
r*9^41  ^^^^'  *^®  vesting  of  the  estate  *in  the  trustee  during  the  life  of 
'-  ""  J  A.  will  not  prevent  the  operation  of  the  statute  in  executing 
the  uses  in  remainder.(2;) 

(q)  Doe  v.  Bolton,  11  Ad.  &  Ell.  188 ;  Adams  v.  Adams,  6  Q.  B.  Rep.  860. 

(r)  Adams  v.  Adams,  6  Q.  B.  Rep.  860  ;  Cooke  v,  Blake,  1  Exch.  Rep.  220. 

(s)  Doe  V.  Barthrop,  5  Taunt.  382,  and  see  Ward  v.  Burburj,  18  Beav.  190;  Doe 
d.  Players  v.  Nicholls,  1  B.  &  Cr.  342;  Doe  v.  Cafe,  7  Exch.  Rep.  615. 

{t}  Wykham  v.  Wykham,  11  East,  458;  see  S.  C.  18  Ves.  419,  and  following 
pages. 

(m)  Doe  V.  Hicks,  Y  T.  R.  433 ;  as  to  Boteler  v.  Allington,  1  B.  C.  C.  72,  see  Doe 
T.  Hicks,  7  T.  R.  435,  and  Wykham  v.  Wvkham,  18  Ves.  418  ;  and  see  Nash  v. 
Coates,  3  B.  &  Ad.  839. 

(u)  Curtis  V.  Price,  12  Ves.  89;  but  see  Wykham  v.  Wykham,  18  Ves.  419,  and 
follo'wing  pages. 

(w)  Colmore  v.  Tyndall,  2  Y.  &  J.  605. 

(z)  Beaumont  v.  Marquis  of  Salisbury,  19  Beav.  198  ;  Haddelsey  v.  Adams,  22 
Beav.  266  ;  Lewis  v.  Rees,  3  K.  &  J.  132. 

(y)  Venables  v.  Morris,  7  T.  R.  342,  438;  and  see  Curtis  v.  Price,  12  Ves.  100; 
Doe  V.  Hicks,  7  T.R.  437  ;  Rochford  v.  Fitzmaurice,  1  Conn.  &  LaW.  169  ;  2  Drur 
&  Warr.  16.  ' 

(2)  Doe  V.  Simpson,  5  East,  171,  per  Lord  Ellenborough :  Robinson  v.  Grey,  9 


OF    THE    LEGAL    ESTATE    IN    THE    TRUSTEE.  253 

Thus,  ia  tlie  much  disputed,  but,  as  it  appears,  rightly  decided  case 
of  Jones  V.  Lord  Say  and  Seal,(«)  where  a  testatrix  devised  to  trustees 
and  their  heirs  upon  trust  to  pay  the  legacies,  devises,  and  bequests 
thereinafter  mentioned  (some  life  annuities  only  were  given,)  and  to  pay 
the  residue  of  the  rents  and  profits  as  her  daughter  should  appoint  for 
her  life,  and  after  her  decease  the  trustees  to  <'  stand  seised"  of  the  pre- 
mises to  certain  uses,  ''  subject  to  the  payment  of  the  several  annui- 
ties ;" — it  was  held  by  the  court  that  the  legal  estate  during  the  life  of 
the  daughter  was  vested  in  the  trustees,  but  that  the  remainder  expect- 
ant upon  her  decease  was  executed  to  the  cestuis  que  use  :  the  trustees 
were  not  required  to  be  agents  after  the  death  of  the  daughter,  but  were 
simply,  subject  to  the  payment  of  the  annuities,  which  meant  only,  sub- 
ject to  the  annuities,  to  stand  seised  to  uses. 

So,  where  a  testator  devised  to  three  trustees  and  their  heirs  subject 
to  the  following  uses  and  estates,  viz.  in  trust  to  permit  two  persons  to 
receive  annuities,  and,  subject  thereto,  he  devised  the  premises  to  the 
trustees  and  their  heirs  until  A.  attained  twenty-one,  upon  certain  trusts, 
and,  when  A.  should  attain  twenty-one,  he  devised  the  premises  to  the 
trustees  and  their  heirs  to  uses  in  strict  settlement,  it  was  held  that  the 
trustees  took  a  chattel  interest  only,  and  that  the  uses  in  remainder  were 
executed  by  the  statute. (i)  The  testator  prefacing  each  limitation  with 
a  devise  to  "  the  trustees  and  their  heirs,"  the  repetition  of  these  words 
was  probably  regarded  as  surplusage,  and  the  will  was  construed  as 
follows  : — "  I  devise  the  estate  to  the  trustees  and  their  heirs  to  the  fol- 
lowing uses,  to  the  use  that  A.  and  B.  may  receive  annuities,  and  subject 
thereto  to  the  use  of  the  trustees  until  A.  attain  twenty-one  and  on  A.'s 
attaining  twenty-one  *to  uses  in  strict  settlement."  Indepen-  ^^-..--. 
dently  of  this  construction,  it  seems  the  devise  to  the  trustees  ^  ^  J 
and  their  heirs  until  A.  attained  twenty-one  would  only  have  the  effect 
of  communicating  a  chattel  interest  ;(r)  for  as  every  estate  of  a  certain 
and  definite  duration,  though  determinable  on  a  life,  is  a  chattel  in  its 
nature,  the  limitation  to  the  heirs  would  be  rejected  as  repugnant. 

In  Harton  v.  Harton^c;?)  a  testator  devised  to  A.  and  B.  and  their 
heirs  upon  trust  to  permit  C,  Sk/eme  covert,  to  receive  the  rents  during 
her  life  for  her  separate  use,  and  after  her  decease  to  the  use  of  her  first 
and  other  sons  in  tail ;  and  in  default  of  such  issue  to  the  use  of  the 
daughters  in  tail  as  tenants  in  common  ;  and  in  default  of  such  issue 
upon  trust  to  permit  D.,  a,  feme  covert,  to  take  the  rents  during  her  life 
for  her  separate  use,  with  remainder  to  the  use  of  her  first  and  other 
sons  in  tail,  with  remainder  to  her  daughters  in  tail  as  tenants  in  com- 
mon ;  and  in  default  of  such  issue,  upon  trust  to  permit  E.,  a  spinster, 

East,  1 ;  Adams  v.  Adams,  6  Q.  B.  Rep.  860 ;  Doe  v.  Ironmonger,  3  East,  533 ;  and 
see  Nash  v.  Coates,  3  B.  &  Ad.  839. 

(a)  8  Yin.  262. 

{b)  Warter  v.  Hutchinson,  5  Moor,  143 ;  S.  C.  1  B.  &  C.  721 ;  and  see  Ward  v. 
Burbury,  18  Bcav.  J  90;  Doe  v.  Cafe,  1  Exch.  Rep.  675. 

(c)  Goodtitle  v.  Whitby,  1  Bur.  228;  Doe  v.  Lea,  3  T.  R.  41  ;  and  see  Ackland  v. 
Lutley,  9  Ad.  &  Ell.  879  ;"but  see  Lethieullier  v.  Tracy,  3  Atk.  780 ;  Fearne's  Con- 
ting.  Rem.  226,  Butler's  note. 

(d)  7  T.  R.  652. 

February,  1858. — 17 


254  LEW  IN    ox    THE    LAW    OF    TRUSTS,    ETC. 

to  receive  the  rents  during  her  life  for  her  separate  use,  with  like 
remainder  to  the  use  of  her  first  and  other  sons  in  tail,  with  remainder 
to  her  dau2:hters  in  tail;  as  tenants  in  common  ;  and  it  was  determined 
that  the  fee  simple  was  in  the  trustees ;  but  this  decision  can  scarcely 
be  reconciled  with  principle,  and  seems  to  have  presented  some  difficultj 
to  the  mind  of  Lord  Eldon.  "  The  court,"  said  his  lordship,  "  held 
that  the  legal  estate  was  in  the  trustees  throughout,  as  it  appears  to  me, 
for  this  reason,  that  there  being  various  trusts  for  the  separate  use  of 
married  women  after  various  trusts  not  for  married  women,  those  trusts 
could  not  subsist  unless  the  legal  estate  was  in  the  trustees  from  the 
beginning  to  the  end,  and  they  relied  on  the  non-repetition  of  a  legal 
estate. "(e)  In  a  recent  case,  however  before  Yice-Chancellor  Wigram, 
his  honor  appears  to  have  considered  himself  bound  by  Harton  v.  Har- 
^^  ton,(/)  and  in  a  still  later  case  the  Court  of  *Queen's  Bench 
L  "^     -I  recognised  its  authority,  at  least  to  a  limited  extent. (^) 

But  if  a  devise  be  to  trustees  and  their  heirs  upon  a  trust  that  can- 
not be  executed  without  an  absolute  control  over  the  property,  as  upon 
trust  to  lease  for  an  indefinite  number  of  years,(/i)  or  to  raise  a  sum  of 
money  by  sale,(i)  and  subject  thereto  to  uses  in  strict  settlement,  the 
trustees  will  not  be  held  to  take  a  mere  power  so  as  to  let  in  the  statute 
to  execute  the  uses,  but  will  be  construed  to  take  the  legal  estate  in  fee, 
and  the  uses  that  are  limited  will  stand  as  equitable  interests. 

It  has  been  observed  in  the  Treatise  of  Powers,"(/i)  that  this  rule  was 
not  attended  to  in  the  case  of  Hawker  v.  Hawker. (/)  The  devise  in 
that  case  was  to  three  trustees  and  their  heirs  upon  trust  to  sell  the  tes- 
tator's lands  at  H.  for  payment  of  his  debts,  and,  in  case  the  proceeds 
should  be  insuflScient,  then  as  to  his  lands  at  F.  upon  trust  to  sell  for  the 
like  purpose,  and  to  dispose  of  the  surplus  moneys  in  manner  therein- 
after directed,  and,  in  case  it  should  not  be  necessary  to  dispose  of  the 
said  lands  at  F.,  then  as  to  such  his  lands  {^inter  alia'j  upon  trust  for  the 
maintenance  of  his  daughter  till  twenty-one,  and,  on  her  attaining  twenty- 
one,  to  the  use  of  the  trustees  during  her  life,  and  after  her  decease  to 
the  use  of  her  children  ;  and  the  court  certified  as  to  the  lands  at  F., 
that  the  trustees  did  not  take  a  larger  estate  than  for  the  life  of  the 
daughter.  The  devise  was  probably  considered  to  be  of  a  double  aspect, 
viz.  to  the  trustees  and  their  heirs  upon  trust  to  sell,  &c.,  if  one  event 
happened,  and  upon  trust  for  the  daughter,  &c.,  if  another  event  happened. 
The  latter  series  of  limitations  took  eflTect,  and  therefore,  as  no  power  of 
sale  was  to  be  exercised  by  the  trustees,  it  was  not  necessary  under  the 
circumstances  to  arm  them  with  the  inheritance. 

(e)  Hawkins  v.  Luscombe,  2  Sw.  391. 

(/)  Brown  v.  Whiteway,  8  Hare,  145. 

(g)  Toller  v.  Attwood,  15  Q.  B.  Rep.  951. 

[h)  Doe  V.  Willan,  2  B.  &  Aid.  84 ;  but  see  Heardson  v.  Williamson,  1  Keen.  3.J ; 
Ackland  v.  Lutley,  9  Ad.  &  Ell.  8T9. 

(i)  Wright  V.  Pearson,  1  Ed.  123  :  Bagshaw  v.  Spencer,  1  Yes.  142  ;  Glover  v. 
Monckton,  3  Bing.  13  ;  Bale  v.  Coleman,  2  Eq.  Ca.  Ab.  309.  note  (e) ;  Sanford  v. 
Irby,  3  B.  &  Aid.  654  ;  Jones  v.  Morgan,  1  B.  C.  C.  20G  :  for  a  correct  report  of  the 
•will,  see  Fearne's  C.  R.  Appendix.  No.  3. 

{k)  1  S\ig.  Pow.  127.  6th  edit.  '  {I)  3  B.  &  Aid.  537. 


OF    THE    LEGAL    ESTATE    IN    THE    TRUSTEE.  255 

*The  case  of  Warter  v.  Hutcliinson(?«)  is  more  difficult  to  be  p^nr-T 
reconciled  with  the  rule  we  are  discussing.  The  limitations  so  L  "^  'J 
far  as  they  concern  the  present  subject,  were  to  trustees  and  their  heirs 
to  the  following  uses,  viz.  to  the  trustees,  their  heirs  and  assigns,  until 
A.  attained  twenty-one,  upon  trust  as  soon  as  convenient  after  the  testa- 
tor's decease  to  raise  out  of  the  rents  and  profits,  or  by  sale  or  mort^ao'e 
thereof,  a  sum  sufficient  for  the  payment  of  debts,  funeral  expenses,  and 
the  costs  of  the  trustees,  and  also  the  sum  of  2000/.  to  be  applied  in  man- 
ner therein  directed,  the  residue  of  the  rents  and  profits,  after  payment 
of  debts,  funeral  expenses,  and  the  sum  of  2000/.,  to  be  paid  to  A.  on 
his  attaining  twenty-one,  and  when  A.  shall  attain  twenty-one  the  testa- 
tor devised  the  premises  to  the  trustees  and  their  heirs  to  uses  in  strict 
settlement;  and  the  court  certified  that  the  trustees  took  a  chattel  inter- 
est, and  not  the  fee  simple.  The  construction  appears  to  have  been,  that, 
as  the  limitation  to  the  trustees  and  their  heirs  was  expressly  limited  to 
the  period  until  A.  attained  ticenty-one,  the  estate  was  intended  to  be  a 
chattel  interest  only,  and  the  charges  were  to  be  raised  either  by  sale  or 
mortgage  of  that  chattel  interest,  or  out  of  the  inheritance  by  virtue  of 
an  implied  power. 

Recent  cases  have  established  the  following  important  qualification  of 
the  rule  now  under  consideration,  viz.,  that  where  an  estate  is  in  the  first 
instance  given  to  trustees  and  their  heirs  upon  trusts  which  do  not  ex- 
haust the  equitable  fee  simple,  and  for  which  a  particular  estate  short  of 
the  legal  fee  in  the  trustees  would  be  sufficient,  but  discretionary  powers 
are  superadded,  which  cannot  be  exercised  by  the  trustees  without  arm- 
ing them  with  the  means  of  passing  the  fee  simple,  there  the  courts  have 
held  that  the  trustees  do  not  take  a  particular  estate  by  way  of  vested 
interest  with  a  power  under  the  statute  of  uses  or  by  a  common  law  au- 
thority of  passing  the  fee,  but  that  they  retain  the  legal  fee  simple  given 
to  them  in  the  first  instance,  on  the  footing  that  they  were  meant  to 
exercise  the  discretion  given  to  them  by  virtue  of  their  ownership  and 
not  by  the  mere  operation  of  a  *power.(%)  Baron  Parke  observed,  r^c.^r-n-i 
in  the  leading  case,(o)  "  It  is  certainly  true  that  where  the  pur-  L  "^  J 
poses  of  the  trusts  on  which  an  estate  is  devised  to  trustees  are  such  as 
not  to  require  a  fee  in  them,  as,  for  instance,  where  the  trust  is  to  pay 
annuities  or  to  pay  over  rents  and  profits  to  a  party  for  life,  there,  if,  sub- 
ject to  the  specified  trust,  the  estate  is  given  over,  the  parties  entitled 
under  such  devise  over  have  been  held  to  take  legal  estates,  the  gift  to 
the  trustees  (even  when  given  with  words  of  inheritance)  having  been 
taken  in  such  cases  to  have  been  meant  to  be  co-extensive  only  with  the 
trusts  to  be  performed.  This  rule  of  construction  has  probably  created 
much  more  difficulty  than  it  has  obviated.  It  is,  however,  now  too  well 
settled  to  be  called  in  question. — But  when  an  estate  is  given  to  trustees, 

(to)  5  Moore,  143 ;  S.  C.  1  B.  &  C.  721. 

(«)  Watson  V.  Pearson,  2  Exch.  Rep.  581 ;  Blagrave  v.  BlagraTe,  4  Exch.  Rep. 
550 ;  Davies  t.  Davies,  1  Q.  B.  Rep.  430 ;  Doe  v.  Cadogan,  7  Ad.  &  Ell.  636 ;  Rack- 
ham  V.  Siddall,  1  Mac.  &  Gord.  607. 

(o)  Watson  v.  Pearson,  2  Exch.  Rep.  593. 


256       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

all  the  trusts  whicli  they  are  to  perform  must  prima  facie  at  least  be 
performed  by  them  by  virtue  and  in  respect  of  the  estate  vested  in  them. 

The  fee  is  in  terms  devised  to  them,  and  it  would  be  a  very  strained 

and  artificial  construction  to  hold  first  that  the  natural  meaning  of  the 
words  is  to  be  cut  down,  because  they  would  give  an  estate  more  exten- 
sive than  the  trust  requires,  and  then,  when  the  trust  does  in  fact  require 
the  whole  fee  simple,  to  hold  that  that  must  be  supplied  by  way  of  power 
defeating  the  estate  to  the  subsequent  devisees,  and  not  out  of  the  inter- 
est of  the  trustees.'^ 

The  rule  of  construction  laid  down  in  this  case  has  since  been  followed, 
even  where  the  language  of  the  subsequent  limitations  has  been  peculi- 
arly applicable  to  a  devise  of  the  legal  estate,  as  where  after  the  primary 
devise  to  the  trustees  and  their  heirs  upon  limited  trusts  with  discretion- 
ary powers  the  estate  was  expressed  to  be  limited  in  strict  settlement,  by 
a  declaration  of  uses  to  that  effect.  (y>) 

But  the  principle  does  not  apply  where  the  devise  is  to  trustees  and 
their  heirs  upoQ  trust  for  a  person  for  life,  and  after  her  death  upon  cer- 
tain trusts  during  the  minority  of  her  *children,  with  a  mere 
L  "'     J  power  of  leasing,  to  be  exercised  during  the  continuance  of  the 
trust  without  any  authority  affecting  the  fee  simple. (5') 

The  law  upon  the  subject  has  now  undergone  some  alteration  from  the 
provisions  of  the  late  act  (1  V.  c.  26,]  for  the  amendment  of  the  law  of 
wills. 

By  the  30th  section  it  is  declared,  «  that  where  any  real  estate  (other 
than  or  not  being  a  presentation  to  a  church)  shall  be  devised  to  any 
trustee  or  executor,  such  devise  shall  be  construed  to  pass<Ae/ee  simple, 
or  other  the  whole  estate  or  interest  which  the  testator  had  power  to  dis- 
pose of  by  will  in  such  real  estate,  unless  a  definite  term  of  years,  abso- 
lute or  determinable,  or  an  estate  of  freehold  shall  thereby  be  given  to 
him,  expressly  or  by  implication." 

And  by  the  following  section  it  is  enacted,  "  that  where  any  real  estate 
shall  be  devised  to  a  trustee  ivifhont  any  express  limitation  of  the  estate 
to  be  taken  by  such  trustee,  and  the  beneficial^  interest  in  such  real  estate 
or  in  the  surplus  rents  and  profits  thereof  shall  not  be  given  to  any  per- 
son for  life,  or  shall  be  given  for  life,  but  the  purposes  of  the  trust  may 
continue  beyond  the  life  of  such  person,  such  devise  shall  be  construed 
to  vest  in  such  trustee  the  fee  simjile  or  other  tiae  whole  legal  estate 
which  the  testator  had  power  to  dispose  of  by  will,  and  not  an  estate 
determinable  when  the  purposes  of  the  trust  shall  be  satisfied.'' 

The  efi"ect  of  these  provisions  is  by  no  means  clear,  but  it  is  conceived 
that  a  definite  chattel  interest,  as  a  term  of  99  years,  or  a  simple 
freehold  as  an  estate  for  the  life  of  A.,  may  still  either  be  limited  ex- 
pressly to  trustees  or  be  raised  by  implication ;  and  that  in  cases  where 
before  the  act  an  indefinite  chattel  interest  would  have  passed  as  in  a 
devise  to  trustees  (without  the  word  "  heirs")  to  pay  debts,  or  a  freehold 

{p)  Blagrave  v.  Blagrave,  4  Exch.  Rep.  550 ;  Rackham  v.  Siddall,  1  Mac.  & 
Gord.  607. 

(?)  Doe  V.  Cafe,  1  Exch.  Rep.  675  :  and  see  Adams  v.  Adams,  6  Q.  B.  Rep.  800. 


OF    THE    LEGAL    ESTATE    IN    THE    TRUSTEE. 


257 


with  an  indefinite  interest  superadded  as  in  Doe  v.  Simpson,(;-')  there  the 
words  of  the  will  are  in  future  made  to  pass  the  fee  simple. (*•) 


♦SECTION  II.  [*260] 

THE    PROPERTIES   AND   DEVOLUTION   OE   THE   LEGAL   ESTATE. 

This  branch  of  our  subject  we  propose  to  consider,  First,  with  refer- 
ence to  the  common  law ;  and,  Secondly,  with  reference  to  the  construc- 
tion of  particular  statutes. 

I.  As  regards  the  common  law,  it  may  be  stated  as  a  general  rule, 
that  the  legal  estate  in  the  hands  of  the  trustee  has  precisely  the  same 
properties  and  incidents  as  if  the  trustee  were  the  usufructuary  owner. 
Thus,  if  real  estate  be  put  in  trust  it  is  still  subject  at  law  in  the  hands 
of  the  trustee  to  curtesy,(i')  dower,(«t)  and  freebench,(6')  and  until  a  late 
act  was  liable  to  forfeiture,(iti)  and  on  the  decease  of  the  trustee  descended 
to  his  heir,  and,  failing  the  heir,  fell  by  escheat  to  the  lord;(cc)  but  now 
by  13  &  14  V.  c.  60,  ss.  15,  46,  substituted  for  4  &  5  W.  4,  c.  23,  trust 
property  is  protected  from  forfeiture  and  escheat,  (y) 

So  chattels  real  and  personal  held  upon  trust  were  forfeitable  until  the 
late  act,  which  extends  to  personal  as  well  as  real  estate,  for  the  offence 
of  the  trustee,(2;)  but  in  the  case  of  two  joint  trustees,  a  moiety  only  was 
forfeited,  and  the  king  and  the  other  trustee  were  tenants  in  common. (a) 
So  on  the  decease  of  the  trustee  the  chattel,  as  part  of  his  personal  estate 
at  law,  will  devolve  on  the  executor  or  administrator.  And  if  the  exe- 
cutor die  having  appointed  an  executor,  the  chattel  will  devolve  on  that 
executor. 

If  the  lands  comprised  in  a  trust  term  be  situate  in  a  *differ-  r*9fln 
ent  diocese  from  that  in  which  the  trustee  was  domiciled,  it  seems  L  J 
a  prerogative  probate  will  be  necessary  before  the  term  can  be  legally 
transferred. (Z>)  The  chattel  is  of  no  value  beneficially  to  the  testator's 
estate ;  but  ecclesiastical  courts  do  not  take  cognizance  of  trusts. 

And  perhaps  the  better  opinion  is,  that  a  chattel  interest  held  upon 
trust  may  at  law  be  taken  in  execution  for  the  debt  of  the  trustee ;  for, 
so  soon  as  the  writ  of  execution  reaches  the  sherifi''s  oflSce,  it  binds  the 
goods  and  chattels  of  which  the  debtor  is  then  possessed,  and  a  trust 

(r)  5  East,  162. 

(s)  See  the  observations  on  the  above  clauses,  H.  Sugden  on  Wills,  p.  119 ;  2 
Jarm.  on  Wills,  263. 

(t)  Bennet  v.  Davis,  2  P.  W.  319. 

(m)  Noel  v.  Jevon,  Freem.  43 ;  Nash  v.  Preston,  Cr.  Car.  190. 

(w)  Hinton  v.  Hinton,  2  Ves.  631,  638;  Bevant  v.  Pope,  Freem.  11  ;  and  see 
Brown  v.  Raindle,  3  Ves.  256. 

(w)  Pawlett  V.  Attorney-General,  Hard.  4G6,  per  Lord  Hale ;  Geary  v.  Bear- 
croft,  Cart.  67,  per  Cur. ;  King  v.  Mildmay,  5  B.  &  Ad.  254. 

(x)  Jenk.  190,  c.  92.  (y)  See  infra,  pp.  285,  286,  287. 

(z)  Pawlett  V.  Attorney-General,  Hard.  466,  per  Lord  Hale;  Wikes's  case.  Lane, 
54;  Scounden  v.  Hawley,  Comb.  172,  per  Dolben,  J.;  Jenk.  219,  c.  66;  lb.  245, 
c.  30. 

(a)  Wikes's  case,  Lane,  54. 

(6)  See  Crosley  V.  Archdeacon  of  Sudbury,  3  Hagg.  201 ;  3  Vend.  &  Purch.  14. 


258  LEW  IN    ON    THE    LAW    OF    TRUSTS,    ETC. 

estate,  as  well  as  a  beneficial  ownership,  must  be  subject  to  the  lien,  for 
the  common  law  can  scarcely  operate  differently  where  it  recognizes  no 
distinction.  The  sheriff  is  a  mere  instrument  for  the  execution  of  the 
leo'al  process,  and  property,  which  the  common  law  holds  liable,  the 
sheriff  can  have  no  discretion  to  exempt  upon  grounds  of  equity.  The 
mere  officer  of  the  court  cannot  have  ligandict  non  ligandi potestafxm.{c^ 
It  was  said,  however,  by  Mr.  Justice  Ashurst,  "  Suppose  a  person  has 
"oods  as  a  trustee  for  certain  purposes,  which  was  made  known  to  the 
sheriff  before  the  sale,  if  the  sheriff  persists  in  selling,  it  would  in  my 
opinion  be  a  tortious  act  in  him."(fZ)  On  the  other  hand,  Lord  Thurlow 
seems  to  acknowledge  the  legal  right  against  the  trustee,  by  observing, 
that,  if  a  creditor  of  the  trustee  take  the  goods  in  execution,  he  will 
himself  become  a  trustee  by  construction  of  equity.(e) 

Assets  in  the  hands  of  an  executor  are  regarded  even  by  the  common 
law  as  a  species  of  trust  property,  and  in  respect  of  them  has  ingrafted 
upon  itself  a  quasi  equitable  jurisdiction :  thus,  if  an  executrix  marry, 
she  may  by  will,  without  the  consent  of  her  husband,  appoint  an  execu- 
tor in  whom  the  assets  will  vest,  and  who  will  thus  become  the  executor 
of  the  original  testator ;(/)  and  though  the  husband  during  the  cover- 
r*9R9"i  ^^'^^  ^^^  power  to  dispose  of  the  assets  in  the  course  *of  adminis- 
L  "^  -I  tration,(7)  he  will  not  be  entitled  to  them  in  his  marital  right 
by  survivorship. ^/A  Nor  can  the  assets  be  taken  in  execution  for  the 
debt  of  the  executor ;((')  and,  if  he  commit  felony  or  treason,  they  are 
exempted  from  forfeiture  to  the  king ;(/(;)  and  if  the  executor  die  intes- 
tate, instead  of  vesting  in  his  administrator,  they  vest  in  the  administra- 
tor de  bonis  non  of  the  testator. (/) 

A  trust  estate,  whether  real  or  personal,  may  at  law,  be  conveyed, 
assigned,  or  incumbered  by  the  trustee  like  a  beneficial  estate;  and,  if 
there  be  co-trustees,  each  may  exercise  the  like  powers  of  ownership  over 
his  own  proportion. 

And,  as  the  trustee  may  dispose  or  the  property  in  his  lifetime,  so  he 
may  devise  or  bequeath  it  at  his  death. 

But  a  trust  estate  will  not  in  all  cases  pass  hy  the  same  xcords  in  a 
will  as  a  beneficial  ownership  would,  for  wherever  the  estate  does  not 
pass  by  operation  of  law  solely,  but  through  the  medium  of  the  intention, 
it  becomes  necessary,  in  order  to  ascertain  the  effect  of  the  instrument, 
to  take  into  consideration  the  particular  circumstances  of  the  trust. 

Whether  a  trust  estate  shall  pass  inclusively  in  a  general  devise,  is  a 
question  that  has  been  frequently  under  discussion.  The  rule  as  origi- 
nally established  was,  that  a  general  expression  would  carry  a  dry  trust 

(c)  Burdett  v.  Rockey,  1  Yern.  58,  per  Cur. 
id)  Farr  v.  Newman,  4  T.  R.  647. 
(e)  Foley  v.  Burnell,  1  B.  C.  C.  278. 

(/)  Scammell  v.  Wilkinson,  2  East,  552  ;  Hodsden  v.  Lloyd,  2  B.  C.  C.  543,  per 
Lord  Thurlow. 

{g)  Thrustout  V.  Coppin,  2  W.  Black.  Rep.  801. 

(A)  Co.  Lit.  351  a,  351  b;  Stow  v.  Drinkwater,  Lofft,  83. 

{i)  Farr  v.  Newman,  4  T.  R.  621. 

{k)  Farr  v.  Newman,  4  T.  R.  628,  per  Grose,  J. 

[l]  Ih.per  eundera;  Rachfield  v.  Careless,  2  P.  W.  161,  per  Powis,  J. 


OF    THE    LEGAL    ESTATE    IN    THE    TRUSTEE.  259 

estate,(??i)  but  afterwards  there  were  some  misgivings  upon  the  sub- 
ject ;(h)  (1)  and  the  court  at  last  acceded  to  the  proposition,  that  general 
words  would  not  pass  trust  estates,  unless  there  appeared  a  positive 
*intention  that  they  should  so  pass.(o)  The  question  was  recon-  ^^^  -, 
sidered  before  Lord  Eldon,  when  the  result  of  the  cases,  after  a  L  ~  '''J 
careful  examination  of  them,  was  declared  to  be,  that,  ichere  the  will 
contained  loords  large  enough,  and  there  was  no  expression  authorising 
a  narroioer  construction,  nor  any  such  disposition  of  the  estate  as  it  U'lis 
unlikely  a  testator  would  make  of  property  not  his  own  (as  complicated 
limitations,  or  any  purpose  inconsistent  with  as  probable  intention  to 
devise  as  to  let  it  descend,^  in  such  a  case,  the  trust  estate  wotdd  pass.(p) 

A  charge  of  debts,  legacies,  annuities,  &c.,  and  a  fortiori,  a  direction  to 
sell,  is  considered  a  sufficient  indication  of  an  intention  not  to  include  a 
mere  trust  estate  ;((y)and  so  where  a  testator  gave,  devised,  and  bequeathed 
to  trustees  all  such  real  estates  as  were  then  vested  in  him  by  way  of  mort- 
gage, the  better  to  enable  his  said  trustees  to  recover,  get  in,  and  receive 
the  principal  moneys  and  interest  which  might  be  due  thereon,  it  was 
ruled  that  the  devise  extended  only  to  mortgages  vested  in  the  testator 
beneficially,  and  did  not  pass  the  legal  estate  of  a  mortgage  in  fee  vested 
in  him  ujjon  trust  fov  another.(r)  Even  where  a  testator,  having  a  irut^t 
estate  and  also  estates  of  his  own,  gave  and  devised  "  all  his  real  estate, 
whatsoever  and  wheresoever,  to  Grace  Thompson,  her  heirs  and  assigns, 
for  ever,  charged  with  50Z.  to  his  friend  Watson,'^  it  was  held  that  the 
trust  estate  did  not  pass.(.s) 

*The  expression  "  my  real  estates"  will  not  restrict  the  mean-  r^cpnA-i 
ing  to  those  vested  in  the  testator  beneficially,^^  nor  will  a  devise  L  J 
to  A.;  his  heirs  and  assigns,  "  to  and  for  his  aud  their  own  use  and 

(m)  Marlow  v.  Smith,  2  P.  W.  198. 

(n)  See  Braybroke  v.  Inskii?,  8  Ves.  437. 

(0)  Attorney-General  v.  Duller,  5  Ves.  340. 

Ip)  Braybroke  v.  Inskip,  8  Ves.  436;  see  Roe  v.  Reade,  8  T.  R.  118 ;  Ex  parte 
Morgan,  10  Ves.  101  ;  Langford  v.  Auger,  4  Hare,  313. 

{q)  Roe  V.  Reade,  8  T.  R.  118;  Duke  of  Leeds  v.  Munday,  3  Ves.  348  ;  Attor- 
ney-General v.  Duller,  5  Ves.  339  ;  Ex  parte  Man  hall,  9  Sim.  555  ;  Ex  parte  Mor- 
gan, 10  Ves.  101 ;  Sylvester  v.  Jarman,  10  Price,  78  ;  Re  Morley's  Trust,  10  Hare, 
293  ;  see  Wall  v.  Dright,  1  J.  &  W.  494. 

(r)  Ex  parte  Morgan,  10  Ves.  101 ;  and  see  Sylvester  v.  Jarman,  10  Price,  78  ; 
Ex  parte  Drettell,  6  Ves.  577. 

(s)  Rackham  v.  Siddall,  16  Sim.  297,  I  Mac.  &  Gor.  607  :  Hope  v.  Liddell,  21 
Deav.  183. 
t    (t)  Draybroke  v.  Inskip,  8  Ves.  425. 

(1)  The  doubt  appears  to  have  originated  in  part. from  an  expression  of  Lord 
Hardwicke  in  Casborne  v.  Scarfe,  1  Atk.  605,  that  by  a  devise  of  all  lands,  tene- 
ments, and  hereditaments,  a  mortgage  in  fee  would  not  pass,  unless  the  equity  of 
redemption  were  foreclosed.  Dut  Lord  Hardwicke  was  not  speaking  here  of  the 
legal  estate,  but  of  the  beneficial  interest  in  the  mortgage.  The  same  thing  was 
said  in  the  same  sense  in  Strode  v.  Russel,  2  Veru.  625.  Lord  Hardwicke's  au- 
thority has  been  cited  on  both  sides  of  the  question  (compare  Duke  of  Leeds  v. 
Munday,  3  Ves.  348,  with  Ex  parte  Sergison,  4  Ves.  147) ;  but  that  he  approved 
of  the  old  rule  is  evident  from  Ex  parte  Dowes,  cited  in  Jlr.  Sanders's  note  to  Cas- 
borne v.  Scarfe,  1  Atk.  605.  Lord  Northington  and  Lord  Thurlow  are  said  to  have 
entertained  the  same  opinion.  (See  Ex  parte  Sergison.  4  Ves.  147  ;  but,  as  to  Lord 
Thurlow,  see  an  obiter  dictum,  Pickering  v.  Vowles,  1  B.  C.  C.  198.) 


260  LEWIN    ON    THE    LAAY    OF    TRUSTS,    ETC. 

henefitj"{xi)  nor  a  devise  to  A.  and  her  heirs,  to  be  disposed  of  by  her 
by  will  or  otherwise,  as  she  may  think  ^t;{y)  though  under  a  devise  to 
a  woman  for  her  separate  iise,  as  the  words  import  a  beneficial  enjoyment, 
a  dry  legal  estate  will  not  pass.(?r)  Again,  a  devise  to  A.  and  B.,  "to 
be  equally  divided  between  them  as  tenants  in  common  and  to  their 
respective  heirs,"  will  pass  the  trust  estate. (.r)  But  where  lands  are 
limited  in  strict  settlement,  with  a  vast  number  of  limitations,  contingent 
remainders,  executory  devises,  powers  of  jointuring,  leasing,  and  raising 
sums  of  money,  it  cannot  for  an  instant  be  supposed  the  testator  meant 
to  include  any  lands  of  which  he  had  not  the  absolute  disposition  ;(_y) 
and  the  same  construction  will  prevail  even  when  the  estate  is  devised 
to  A.  for  life  or  in  tail  with  remainder  over.(2) 

The  question  whether  the  legal  estate  in  a  mortgage  in  fee  passes, 
requires  a  separate  consideration.  The  mortgagee  has  a  beneficial  inter- 
est in  the  property,  as  a  security,  a  distinction  not  always  sufficiently 
adverted  to,  but  which  is  strongly  in  favour  of  the  legal  estate  passing  to 
the  person  who  is  to  receive  the  mortgage  money.(«)  Hence  the  deci- 
sions establishing  that  the  legal  estate  passes  by  a  general  devise  of  securi- 
ties for  money, {l>\  and  that  in  the  case  of  such  a  bequest  neither  a 
r*9Rf^T  *g6i^6ral  trust  to  sell  and  convert,(c^  nor  a  charge  of  debts,(f7)  will 
L  J  prevent  it  from  passing;  and  it  is  conceived,  notwithstanding  a 
former  decision  of  the  court  of  exchequer,(^]  that  the  case  of  a  general 
devise  and  bequest  of  real  and  personal  estate  charged  with  debts  admits 
of  no  substantial  distinction. 

The  rule  that  trust  estates  will  pass  under  a  general  devise  assumes 
that  a  testator  by  making  such  a  devise  does  not  commit  a  breach  of 
trust,  otherwise  general  words  would  not  have  been  construed  to  carry 
the  trust  estate.  However,  it  was  observed  in  one  case  by  the  late  vice- 
chancellor  of  England  that  in  his  opinion  it  was  not  lawful  for  a  trustee 
to  dispose  of  the  estate,  but  that  he  ought  to  permit  it  to  descend ;  and 
that  there  was  no  substantial  distinction  between  a  conveyance  Vn^er?;iros, 
and  a  devise,  for  the  latter  was  nothing  but  a  po.s'<  mortem  conveyance. (/) 
But  Lord  Langdale  considered  that  there  was  a  wide  distinction  between 
a  conveyance  in  the  trustee's  lifetime  and  a  devise  by  his  will ;  for  dur- 

(m)  Ex  parte  Shaw,  8  Sim.  159 ;  Bainbridge  v.  Lord  Ashburton,  2  Y.  &  C.  347; 
Sharpe  v.  Sharpe,  12  Jur.  598  ;  and  compare  Ex  parte  Brettell,  6  Ves.  57/,  with 
Braybroke  v.  Inskip,  8  Ves.  434. 

{v)  Ex  parte  Shaw,  8  Sim.  159. 

(w)  Liudsell  v.  Thacker,  12  Sim.  178.  The  marginal  note  of  the  Report  is 
quite  contrary  to  the  decision. 

[x)  Ex  parte  Whitacre,  at  the  Rolls,  July  22, 1807,  cited  1  Sand.  Uses  &  Trusts, 
359,  4th  ed.     See  Re  Morley's  Trust,  10  Hare,  293. 

(?/)  Braybroke  v.  Inskip,  8  Ves.  434,  per  Lord  Eldon. 

(z)  Thompson  v.  Grant,  4  Madd.  438  ;  overruling  Ex  parte  Bowes,  cited  in  Mr. 
Sanders's  note  to  Casborne  v.  Scarfe,  1  Atk.  605  ;  Re  IIorsf\all,  1  Maclel.  &  Younge, 
292  ;  Galliers  v.  Moss,  9  B.  &  Cr.  267. 

(a)  Doe  V.  Bennett,  6  Exch.  892  ;  and  comments  of  Vice-Chancellor  Kindersley 
on  this  case,  Re  Cantley,  17  Jur.  124. 

(6)  King's  Mortgage,  5  De  Gex  &  Sm.  644,  and  cases  there  reviewed. 

YJ  ^  parte  Barber,  5  Sim.  451  ;  Mather  v.  Thomas,  6  Sim.  115. 

(rf)  Field's  Mortgage,  9  Hare,  414,  overruling  Renvoize  v.  Cooper,  10  Price,  78  ; 
Knight  V.  Robinson,  2  K.  &  J.  503. 

(«)  Doe  V.  Lightfoot,  8  M.  &  W.  553.  (/)  Cook  v.  Crawford,  13  Sim.  98. 


OF    THE    LEGAL    ESTATE    IN    THE    TRUSTEE.  261 

iDO'  his  life  he  had  a  personal  discretion  confided  to  him,  which  he  could 
not  delegate,  but  the  settlor  could  not  have  reposed  any  personal  confi- 
dence in  the  trustee's  heir,  for  it  could  not  be  known  beforehand  who 
such  heir  would  be;  and  that  if  the  estate  were  allowed  to  descend,  it 
might  become  vested  in  married  women,  infants,  or  bankrupts,  or  persons 
out  of  the  jurisdiction  ;  and  he  could  not  therefore  hold  it  to  be  abroach 
of  trust  to  transmit  the  estate  by  will  to  trustworthy  devisees. (^)  The 
propriety  or  impropriety  of  a  devise  of  trust  estates  must  evidently  depend 
on  all  the  circumstances  of  the  case.  If  an  estate  be  conveyed  to  A.  and 
his  heirs  upon  trust,  that  A.  and  his  heirs  shall  execute  the  trust,  it  is 
considered  that,  in  the  absence  of  special  circumstances,  the  trustee  ought 
not  to  be  break  the  natural  devolution  of  the  trust  by  passing  the  legal 
estate  to  a  devisee,  while  the  trust  was  confided  to  *the  heir;  and  r*266-| 
in  such  a  case,  the  assets  of  the  trustee  might  perhaps  be  held  L  -• 
liable  for  the  costs  of  restoring  the  trust  to  its  proper  channel. (A)  But 
it  is  conceived  that  if  the  heir  apparent  or  presumptive  were  an  infant, 
bankrupt,  insolvent,  lunatic,  feme  covert,  or  out  of  the  jurisdiction,  it 
would  be  a  proper  act  to  transmit  the  estate  to  a  devisee. 

How  far  a  devisee  of  the  trust  estate  can  execute  the  trust,  will,  of 
course,  depend  on  the  intention  of  the  settlor.  Thus,  real  or  personal 
estate  may  be  vested  in  A.  upon  trust,  that  A.,  personally,  shall  execute 
the  trust;  and  in  this  case,  the  heir  or  executor  of  A.,  though  he  take 
the  legal  estate,  cannot  act  as  trustee. ({)  A  fortiori  in  that  case  the 
devisee  would  be  a  mere  depository  of  the  legal  estate,  without  any  autho- 
rity to  execute  the  trust. (Z:)  So,  if  a  settlor  vest  an  estate  in  A.  upon 
trust,  that  A.  and  his  heir  shall  sell,  &c. ;  a  devisee  being  the  hceres 
factus  only,  and  not  the  hceres  natns,  cannot  exercise  the  power.(?) 

But  it  most  frequently  happens  that  an  estate  is  vested  in  A.  upon 
trust,  that  A.,  his  heirs  and  assigns,  shall  hold  upon  the  trusts  :  and 
the  question  then  is,  whether  a  devisee  of  A.  may,  as  falling  under  the 
description  of  assigns,  not  only  take  the  estate,  but  also  execute  the 
trust  ?  In  a  late  case,  where  the  settlement  contained  no  power  of 
appointment  of  neio  trustees,  it  was  held,  that  as  a  conveyance  in  the 
lifetime  of  the  trustee  to  a  stranger  would  have  been  a  breach  of  trust, 
the  word  assign  could  mean  only  a  devisee  taking  under  a  j^ost  mortem 
conveyance,  when  the  personal  confidence  in  the  trustee  necessarily 
ceased ;  and  the  court,  on  a  bill  filed  by  the  cestuis  que  trust  for  the 
appointment  of  new  trustees,  refused  the  relief  prayed  on  the  ground  that 
the  devisees  had  not  only  the  legal  estate,  but  were  properly  trustees 
within  the  scope  of  the  settlor's  intention. (wi) 

(g)  Titley  v.  Wolstenholme,  1  Beav.  435  ;  and  see  Macdonald  v.  Walker,  14  Bear. 
556;  Wilson  t.  Bennett,  5  De  Gex  &  Sm.  479. 

(h)  See  Cook  v.  Crawford,  13  Sim.  98. 

(i)  See  Mortimer  v.  Ireland,  11  Jur.  721. 

(yt)  Mortimer  V.  Ireland,  11  Jur.  721;  S.  C.  before  Vice-Chancellor  Wigram,  6 
Hare.  196.  .        .  .  , 

{ij  Cook  V.  Crawford,  13  Sim.  91 ;  Beasley  v.  Wilkinson,  13  Jur.  649  ;  m  which 
case  a  devise  by  a  sole  surviving  devisee  in  trust  of  all  estates,  M-hich  at  his 
decease  might  be  vested  in  him  as  trustee,  and  which  he  could  devise  tcithout  breach 
of  trust,  was  held  by  the  vice-chancellor  of  England  to  pass  trust  estates. 

(m)  Titley  v.  Wolstenholme,  7  Beav.  425,  referred  to  without  disapprobation  by 
Lord  Cottenham  in  Mortimer  v.  Ireland,  11  Jur.  721. 


2G2       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

This  case  went  to  the  utmost  verge,  and,  indeed,  cannot  be 
L  "'"'J  *implicitly  relied  upon ;  for  even  where  there  is  no  power  of 
appointment,  the  word  "assigns"  may  be  satisfied  by  holding  it  to  mean 
a  dowress,  tenant  by  the  curtesy,  or  in  a  case  prior  to  the  act  excepting 
trust  estates  from  forfeiture,  the  lord  taking  by  forfeiture,  who  are  assigns 
in  law.  It  is,  however,  at  all  events  clear,  that  should  the  settlement 
contain  a  power  of  appointment  of  new  trustees,  the  word  assigns  could 
then  receive  the  construction  of  persons  lawfully  appointed  under  the 
power,  and  a  devisee  would  be  construed  not  to  be  a  trustee.  Thus,  in 
Fordyce  v.  Willis(?t)  a  discretionary  trust  was  limited  to  trustees,  their 
heirs  and  assi(/ns  ;  but  the  court  held,  that  trustees  appointed  by  the 
court  were  not  assigns  within  the  contemplation  of  the  power. 

In  the  recent  case  of  Wilson  v.  Bennett,(c)  the  two  devisees  of  the 
surviving  trustee  contracted  to  sell,  and  the  title  was  held  by  Vice-Chan- 
cellor  Knight  Bruce  to  be  too  doubtful  to  be  enforced.  It  was  after- 
wards discovered  that  one  of  the  devisees  was  also  the  heir  of  the  sur- 
viving trustee  ;  but  Sir  James  Parker  still  held  the  title  to  be  too  doubt- 
ful, on  the  ground  that  the  testator  had  never  contemplated  such  an  event 
as  that  the  estate  should  vest  in  the  successor  and  the  power  go  to 
another.  He  added,  that  it  would  often  be  the  duty  of  a  trustee  to  take 
care  that  the  legal  estate  did  not  vest  in  a  lunatic,  or  a  person  out  of  the 
jurisdiction,  or  otherwise  unfit,  and  for  that  purpose  to  devise  it  5  but  in 
every  case  the  question  was,  whether  the  devise  was  in  accordance  with 
the  title  under  which  the  trustee  held.  It  will  be  borne  in  mind,  in 
explanation  of  this  case,  that  if  an  estate  be  limited  to  A.  and  his  heirs 
upon  trust,  and  A.  devises  the  estate,  there  is  in  fact  no  heir ;  for  the 
settlor  must  have  meant  the  heir  in  respect  of  the  trust  estate,  and  by  the 
devise  the  descent  has  been  broken  and  there  is  no  heir. 

In  another  case,(^))  where  leaseholds  were  assigned  to  two  trustees, 
their  executors  and  administrators,  upon  trust;  and  the  surviving  trustee 
devised  the  leaseholds  to  A.  and  B.  upon  the  same  trusts,  and  appointed 
r*9pQ-i  ■^^•'  -^-J  ^"^  ^-  executors  :  on  *a  petition  by  A.  and  B.  to  the  court 
L  "  J  to  have  a  trust  fund,  the  proceeds  of  the  leaseholds,  paid  out  to 
them,  Yice-Chancellor  Kindcrsley  refused,  observing,  that  the  surviving 
trustee  had  no  authority  to  bequeath  the  execution  of  the  trust,  but  could 
only  pass  the  legal  estate.  The  petition  was  then  amended  by  joining 
C.  as  a  co-petitioner,  so  that  the  petition  was  now  that  of  the  legatees, 
and  also  of  the  executors ;  but  the  vice-chancellor  still  refused,  on  the 
ground  that  the  testator  had  himself  declared,  that  his  executors  as  such 
should  not  be  trustees,  and,  therefore,  since  by  the  bequest,  he  had  taken 
the  legal  estate  from  those  who  ought  to  have  been  trustees,  there  must 
be  an  appointment  of  new  trustees. 

A  vendor,  after  the  contract  for  sale,  but  before  the  completion  of  it, 
is  a  trustee  for  the  purchaser  sub  modo  only,  and  the  estate  will  pass  by 
a  general  devise  in  his  will,  where  it  would  not  have  been  included  had 
the  testator  been  a  mere  and  express  trustee.  "  A  constructive  and  a 
naked  trustee,"  said  Sir  T.  Plumer,  "  for  many  purposes  stand  in  diflfer- 

(n)  2  Phil.  497.  (0)  5  Dc  G.  &  Sm.  475. 

(p)  Re  Bum's  Estate,  1  Drew.  319. 


OF    THE    LEGAL    ESTATE    IN    THE    TRUSTEE.  263 

ent  situations.  A  mere  trustee  is  a  person  who  not  only  has  no  beneficial 
ownership  in  the  property,  but  never  had  any,  and  could  therefore  never 
have  contemplated  a  disposition  of  it  for  his  own  purposes.  A  vendor 
was  at  one  time  both  the  legal  and  beneficial  owner,  and  may  again  become 
so  if  anything  should  happen  to  prevent  the  execution  of  the  contract. 
It  may  turn  out  the  title  is  not  good,  or  the  purchaser  may  be  unable  to 
pay,  or  he  may  become  bankrupt.  The  purchaser  is  not  entitled  to  the 
possession  unless  stipulated  for,  and  if  he  should  take  possession  it  would 
be  a  waiver  of  any  objections  to  the  title.  If  the  purchase-money  has 
not  been  paid,  a  court  of  equity  would  restrain  him  at  the  instance  of 
the  vendor."  And  upon  these  grounds  his  honor  held  in  the  case  that 
elicited  the  above  remarks,  that  an  estate  which  was  the  subject  of  a 
contract  was  included  in  a  general  devise  to  trustee  though  upon  trust  to 
sell.  (5) 

As  the  dry  legal  estate  in  the  hands  of  the  trustee  is  affected  by  the 
operation  of  law,  and  may  be  disposed  of  by  the  act  of  the  trustee,  pre- 
cisely in  the  same  manner  as  if  it  were  vested  *in  him  benefi-  p2691 
cially,  so  it  confers  upon  him  all  the  legal  privileges,  and  sub-  L  ""  J 
jects  him  to  all  the  legal  burdens,  that  are  incident  to  the  usufructuary 
possession. (r) 

Thus  the  trustee  can  bring  any  action  respecting  the  trust  estate  in  a 
court  of  law,  the  cestui  que  trust,  though  the  absolute  owner  in  equity, 
being  at  law  regarded,  as  a  general  rule,  in  the  light  of  a  stranger.(.s)  So 
the  trustee  of  a  manor  is  the  person  to  appoint  the  steward  of  it,(/)  and 
the  trustee  of  an  advowson  to  present  to  the  church, («)  but  in  either 
case  he  has  the  mere  legal  right,  and  is  bound  in  equity  to  observe  the 
directions  of  his  cesftii  que  trust.(^v^ 

So  where  a  debtor  to  the  trust  estate  becomes  bankrupt,  the  trustee  is 
the  person  to  prove  for  the  debt,  and  that  without  the  concurrence  of 
the  cestid  que  frust,{u-)  unless  it  be  such  a  simple  trust  as  where  A.  is 
trustee  for  B.  absolutely,  and  then  it  rests  in  the  discretion  of  the  com- 
missioners to  require  the  concurrence  of  the  cestui  que  trust;  for  who 
knows  but  that  B.  may  have  already  received  the  money  ?(ic) 

And  originally  the  trustee  as  the  legal  proprietor  had  the  right  of 
voting  for  coroners  j(^)(l)  but  by  the  58  G-.  3,  c.  95,  sect.  2,  it  was 

(q)  Wall  V.  Bright,  IJ.  &  W.  494. 

(r)  Burgess  v.  Wbeate,  1  Ed.  251,  per  Lord  Northington. 

(s)  See  Allen  v.  Imlett,  Holt,  641 ;  Gibson  v.  Winter,  5  B.  &  Ad.  96 ;  May  v. 
Taylor,  6  M.  &  Gr.  261. 

{()   Mott  V.  Buxton,  7  Ves.  201  ;  and  see  Gary,  14. 

(«)  See  in  Re  Shrewsbury  School,  I  M.  &  Cr.  6i1 ;  Hill  v.  Bishop  of  London,  1 
Atk.  618. 

(v)  Attorney-General  v.  Parker,  3  Atk.  577,  per  Lord  Hardwicke ;  Attorney- 
General  V.  Forster,  10  Ves.  338,  per  Lord  Eldon  ;  Attorney-General  v.  Newcombe, 
14  Ves.  7,  per  eundcni ;  Kensey  v.  Langham,  Gas.  t.  Talb.  144,  per  Lord  Talbot; 
Amhurst  v.  Bawling,  2  Vern.  401  ;  Barrett  v.  Ghibb,  W.  Black.  Rep.  1053,  per  De 
Grey,  J.  (w)  Ex  parte  Green,  2  Deac.  &  Ghit.  116,  per  Cur. 

(x)  Ex  parte  Dubois,  1  Gox,  310 ;  and  see  Ex  parte  Battier,  Buck,  426 ;  Ex  parte 
Gray,  4  D.  &  Gh.  778. 

{y)  Burgess  v.  Wheate,  1  Ed.  251,  as  to  the  right  of  the  cestui  que  tnist  to  vote 
for  coroners,  see  pp.  592,  593, 

(1)  And  Lord  Northington  added   for  "sheriffs,"  (Burgess  v.  Wheate,  1  Ed. 


26-i  LEW  IN    ON    THE    LAW    OF    TRUSTS,    ETC. 

enacted,  ttat  "  no  person  should  be  allowed  to  have  any  vote  for  or  by 
reason  of  any  trust  estate  or  mortgage,  unless  such  trustee  or  mortgagee 
r*9-m  should  be  in  actual  possession  *or  receipt  of  the  rents  and  pro- 
L  "^  J  fits  of  the  same  estate,  but  that  the  mortgagor  or  cestui  que  trust 
in  possession  should  vote  for  the  same." 

So  the  trustee  was  the  person  entitled  at  common  laic  to  vote  for 
members  of  parliament  ;[z)  but  by  the  8  H.  6,  c.  7,  it  was  enacted  that 
every  elector  should  have  "  a  freehold  of  the  value  of  forty  shillings  a 
year  at  the  least,  ahove  all  charges,"  and  the  sheriff  was  authorised  to 
"  examine  every  elector  upon  oath  how  much  he  might  expend  by  the 
year,"  and  'af  he  could  not  expend  forty  shillings  ly  the  year,"  he  was 
disabled  from  voting.  It  can  scarcely  be  doubted  that  from  the 
time  of  this  enactment  a  trustee,  had  the  sheriff  questioned  his  qualifica- 
tion, could  not  have  satisfied  the  requisitions  of  the  act ;  but  the  sheriff 
probably  did  not  exercise  this  right  of  interrogation,  and  therefore  the 
trustee,  as  he  was  i\\Q  freeholder,  though  he  could  not  expend  the  rents, 
was  allowed  to  continue  in  the  enjoyment  of  the  franchise,  particularly 
as  the  cestui  que  trust,  who  had  not  the  freehold,  was  at  all  events 
excluded.  The  7  &  8  Gul.  3,  c.  25,  s.  7,  enacted,  that  "  no  person 
should  vote  for  or  by  reason  of  any  trust  estate  or  mortgage,  unless  such 
trustee  or  mortgagee  was  in  actual  possession  or  receipt  of  the  rents  and 
profits  of  the  same,  but  that  the  mortgagor  or  cestui  que  trust  in  posses- 
sion should  vote  for  the  same.  By  the  effect  of  this  clause,  the  cestui 
que  trust,  if  in  possession,  was  now  for  the  first  time  entitled  to  a  vote, 
and  the  trustee  in  that  case  was  expressly  excluded  from  the  privilege  ; 
if  the  trustee  was  in  possession  or  in  receipt  of  the  rents  and  profits,  the 
legislature,  without  any  positive  enactment,  seems  to  have  regarded  the 
trustee  as  qualified  by  the  trust  estate  to  be  an  elector.  The  10  Anne, 
c.  23,  s.  2,  declared,  that  "  no  person  should  vote  who  should  not  have 
received  the  rents  or  profits,  or  be  entitled  to  have  received  the  same  to 
the  full  value  of  forty  shillings  or  more  to  his  oicn  iise  for  one  year 
before  such  election."  The  statute  of  11.  6,  had  apparently  excluded 
the  trustee,  the  statute  of  William  had  expressly  disabled  him  if  not  in 
actual  possession  or  in  receipt  of  the  rents  and  profits ;  and  now  by  this 
|-^(^-.,-j  last  enactment  of  Anne  he  was  incapacitated  from  *giving  a  vote 
L  -'in  any  case.  By  the  same  statute,  any  candidate  or  voter  was 
authorised  to  administer  an  oath  to  the  elector  at  the  time  of  polling, 
but,  among  the  qualifications  particularly  enumerated  in  the  oath,  that 
of  "receipt  of  the  rents  and  profits  to  his  own  use  for  one  year  before  the 
election"  was  by  some  oversight  omitted.  This  defect  was  afterwards 
remedied  by  the  18  Gr.  2,  c.  18,  s.  1,  which  incorporated  into  the  oath 
the  declaration  that  the  elector  had  been  ^^  in  the  actual  possession  or 
receipt  of  the  rents  and  prof  Is  to  his  own  use  for  two  calendar  months" 
before  the  election.    It  must  be  observed  that  the  words  "  actual  posses- 

(z)  Burgess  v.  Wheate,  1  Ed.  251,  per  Lord  Northington. 


251 ;)  but  the  election  of  sheriffs  had  been  transferred  from  the  people  to  the 
chancellor,  treasurer,  and  judges,  by  9  E.  2,  st.  2,  before  the  establishment  of 
trusts. 


OF    THE    LEGAL    ESTATE    IN    THE    TRUSTEE.  265 

sion,  or  receipt  of  the  rents  and  profits/'  correspond  to  the  expression  in 
the  statute  of  Anne,  "  who  shall  not  have  received  the  rents  and  profits 
to  his  own  use/'  and  therefore  the  words  "  to  his  own  use"  in  the  sta- 
tute of  George  must  be  taken  to  have  applied  to  '^  actual  possession"  as 
well  as  to  "  the  receipt  of  the  rents  and  profits."  The  Reform  Act,(a) 
by  the  23rd  section,  re-enacted  the  provision  of  the  statute  of  William 
3,  before  referred  to ;  and  by  the  26th  section  declared  that,  "  notwith- 
standing anything  thereinbefore  contained,  no  person  should  be  regis- 
tered in  any  year  in  respect  of  his  estate  or  interest  in  any  lands  or  tene- 
ments as  a  freeholder,  copyholder,  &c.,  unless  he  should  have  been  in 
the  actual  possession  thereof,  or  in  receipt  of  the  rents  and  profits  thereof 
for  his  oum  use,  for  six  calendar  months  previous  to  the  last  day  of  July 
in  such  year  /'  thus,  it  would  seem,  leaving  the  law  in  respect  of  trus- 
tees precisely  on  the  same  footing  as  it  stood  before  the  act  was  passed. 
All  doubt,  however,  was  removed  by  the  6th  Vict.  c.  18,  the  74th  sec- 
tion of  which  enacts,  that  "  no  trustee  of  any  lands  or  tenements  shall 
in  any  case  have  a  right  to  vote  in  any  such  election  for  or  by  reason  of 
any  trust  estate  therein,  but  that  the  cestui  que  trust  in  actual  possession 
or  in  the  receipt  of  the  rents  and  profits  thereof,  though  he  may  receive 
the  same  through  the  hands  of  the  trustee,  shall  and  may  vote  for  the 
same  notwithstanding  such  trust." 

Again,  the  trustees  are  liable  to  be  rated  for  the  property  vested  in 
them,(&)  unless  they  are  trustees  exclusively  for  ^public  pur-  r*2721 
poses  without  any  profit  to  themselves  or  a  particular  class. (c)      L       "'J 
The  trustee  of  a  copyhold  must  pay  a  fine  on  his  admission, (cZ)  and  on 
his  decease  a  heriot  becomes  due  to  the  lord.(<3)     But,  where  two  or 
more  trustees  have  been  admitted yoi"n%,  on  the  decease  of  one  neither 
fine  nor  heriot  is  due ;  not  a  fine  for  admission,  because,  joint  tenants 
being  seised  j)er  my  et  per  tout,  the  estate  has  vested  in  the  survivors  by 
the  original  grant,  and  not  a  heriot,  because,  however  many  in  number 
the  trustees  may  be,  they  u\\  form  but  one  tenant  to  the  lord,  and  there- 
fore no  heriot  is  demandable  until  the  death  of  the  longest  liver.(/) 
Where  a  number  of  trustees  are  admitted  as  the  joint  owners  of  the  trust 
estate,  the  fine  is  to  be  assessed  upon  the  following  principle  :  for  the 
first  life  is  to  be  allowed  the  fine  usually  paid  on  the  admission  of  a 
single  tenant,  on  the  second  life  one-half  the  sum  taken  for  the  first, 
and  on  the  third  one-half  the  sum  taken  for  the  second,  &c. ;   the  result 
of  which  will  be,  that,  however  great  the  number  of  the  trustees  admitted, 
the  amount  of  the  whole  fine  will  never  be  double  of  that  paid  upon  the 
first  life.ff/)     And  on  every  change  of  trustees  the  same  fine  is  demand- 
able  :  even  where  some  of  the  surrenderees  are  the  survivors  of  the  old 

(a)   2  Gul.  4,  c.  45.  {b)  Queen  v.  Sterry,  12  Ad.  &  Ell.  84. 

(c)  Regina  v.  Shee,  4  Q.  B.  Rep.  2 ;  Mayor  of  Manchester  v.  Overseers  of  Man- 
chester, 17  Q.  B.  Rep.  859;  Queen  v.  Harrogate  Commissioners,  15  Q.  B.  Rep. 
1012. 

{d)  Earl  of  Bath  v.  Abney,  1  Dick.  260 ;  S.  C.  1  Bur.  206. 

(e)  Trinity  College  v.  Browne,  1  Vern.  441 ;  see  Car  v.  Ellison,  3  Atk.  77. 

(/)  See  2  Watk.  Cop.  147. 

(V)  Wilson  V.  Hoare,  2  B.  &  Ad.  350,  see  360  ;  10  Ad.  &  Ell.  236,  and  1  Scnvcn, 
Copyh.  393,  394,  3rd  edit. 


2G6       LEWIN  ON  THE  LAW  01    TRUSTS,  ETC. 

trustees,  for  tbey  take  a  new  estate. (/«)  Though  the  manorial  burdens 
fiill  upon  the  trustee  personally  at  law,  he  is  of  course  entitled  in  equity 
to  reimburse  himself  the  expenditure  out  of  the  profits  of  the  estate. (/) 

If  a  trustee  carry  on  a  trade  in  the  due  execution  of  his  trust,  he 

makes  himself  amenable  to  the  operation  of  the  bankrupt  law  in  the 

same  manner  as  if  he  had  traded  for  his  own  benefit,(A-)  and  on  his 

decease  his  lands  were  liable  under  *Sir  Samuel  Romilly's  Act(/) 

L         J  to  the  discharge  of  simple  contract  debts.(?>i) 

II.  Of  the  legal  estate  in  the  trustee  with  reference  to  the  construction 
of  particular  statutes. 

1.  By  the  12  &  13  Vict.  c.  106,  ss.  141,  142,  it  is  enacted,  that  "  all 
the  personal  estate,  present  and  future,  of  the  bankrupt,  whersoever  the 
same  may  be  found  or  known,  and  all  property  which  he  may  purchase, 
or  which  may  revert,  descend,  be  devised  or  bequeathed,  or  come  to  him 
before  he  shall  have  obtained  his  certificate,  and  all  lands,  tenements, 
and  hereditaments,  except  copyhold  or  customaryhold,  to  which  the 
bankrupt  is  entitled,  and  all  interest  to  which  such  bankrupt  is  entitled 
in  any  of  such  lands,  tenements,  or  hereditaments,  and  of  which  he 
might  have  disposed,  and  all  such  lands,  tenements,  and  heredita- 
ments as  he  shall  purchase,  or  shall  descend,  be  devised,  revert  to,  or 
come  to  such  bankrupt  before  he  shall  have  obtained  his  certificate," 
shall  vest  in  the  assignees  of  such  bankrupt. 

The  operation  of  the  bankruptcy  acts  was  thus  commented  upon  by 
Lord  Chief  Justice  Willes  : — "  The  assignees,"  he  said,  "  under  a  com- 
mission of  bankruptcy,  are  not  to  be  considered  as  general  assignees  of 
all  the  real  and  personal  estate  of  which  the  bankrupt  was  seised  and 
possessed,  as  heirs  and  executors  are  of  the  estate  of  their  ancestors  and 
testators,  for  nothing  vests  in  the  assignees  even  at  law  but  such  real 
r*2741  ^^^  ^personal  estate  of  the  bankrupt  in  which  he  had  the  equita- 
L  -I  ble  as  well  as  legal  interest,  and  which  is  to  be  applied  to  the 
payment  of  the  bankrupt's  debts."(7i) 

It  is  clear,  therefore,  that,  in  the  case  of  a  hare  trust,  the  property, 

{h)  Sheppard  v.  Woodford.  5  Mees.  &  Welsb.  G08  ;  but  see  Wilson  v.  Hoare,  10 
Ad.  &  Ell.  236. 

{i)  Rivet's  case,  Moore,  890. 

(k)  Wigbtman  v.  Townroe,  1  M.  &  S.  412  ;  Ex  parte  Garland,  10  Ves.  119,  per 
Lord  Eldon  ;  Hankey  v.  Han^mond,  cited  iu  marginal  note  to  1  Cooke's  Bank.  Law, 
84,  3d  ed. 

{I)  47  G.  3,  c.  74.  Repealed,  and  re-enacted  by  11  G.  4,  and  1  Will.  4,  c.  47. 
Now  by  3  &  4  W.  4,  c.  104,  tbe  lands  of  all  persons,  traders  or  otherwise,  are  lia- 
ble to  their  simple  contract  debts. 

(m)  Longuet  v.  Hockley,  Feb.  16,  1836,  Exch.  MS.  Moss  Levy,  a  trader  in  part- 
nership with  his  brother  Lewis  Levy,  and  his  cousin  Walter  Levy,  devised  and  be- 
queathed all  his  real  and  personal  estate  to  Hockley,  upon  trust  to  convert  the 
same  into  money,  and  to  stand  possessed  of  the  proceeds  upon  certain  trusts  in 
the  will  mentioned.  Hockley,  in  breach  of  his  duty,  continued  the  business  with 
the  two  co-partners  in  the  name  of  the  testator,  and  died  indebted  to  the  trust 
estate  in  the  sum  of  llOOZ.,  and  without  leaving  sufficient  personal  assets.  Baron 
Alderson  held  clearly,  that  Hockley  was  a  trader  within  the  meaning  of  the  sta- 
tute, and  that  his  lands  were  liable  for  the  money  due  to  the  trust. 

(n)  Scott  V.  Surman,  Willes,  402. 


OF    THE    LEGAL    ESTATE    IN    THE    TRUSTEE.  2G7 

whether  real(o)  or  personal,(p)  will  not  vest  by  the  bankruptcy  in  the 
assignees,  even  at  late  And  the  proposition  applies  not  only  to  the  case 
of  express  trustees,  but  also  oi trustees  virtute  ojiicii,  as  executors,  adminis- 
trators,((/)  factors,(rj  &c. 

And,  where  the  trust  estate  or  fund  has  been  converted  into  property 
of  a  different  character,  the  new  acquisition  will  equally  be  protected 
against  the  effects  of  the  bankruptcy;  for  the  product  or  substitute  of 
the  original  thing  must  follow  the  nature  of  the  thing  from  which  it 
proceeded. (.s)  Thus,  if  goods  consigned  to  a  factor  be  sold  by  him  and 
reduced  into  money,  so  long  as  the  money  can  be  identified,  as,  where  it 
has  been  kept  in  bags,  the  employer,  and  not  the  creditors,  will  have 
the  benefit  of  that  specific  sum.(/)  When  money  is  said  to  have  no  ear- 
mark, the  meaning  is  no  more  than  this,  that,  being  the  currency  of  the 
country,  it  cannot  be  followed  when  once  it  has  passed  in  circulation. (w) 

So,  if  the  factor  sell  the  goods  and  take  notes  in  payment,  the  value 
of  the  notes,  notwithstanding  the  bankruptcy,  may  be  recovered  by 
action  from  the  assignees  ;(i')  for,  though  *negotiable  securities  r^pyK-i 
are  said,  like  money,  to  have  no  ear-mark,  the  expression  does  L  "^  J 
not  intend  that  such  securities  in  the  hands  of  a  bankrupt  have  run  into 
the  general  mass  of  his  property,  and  pass  to  his  assignees,  but  only 
that  negotiable  securities,  as  a  circulating  medium  in  lieu  of  money, 
cannot  be  recovered  from  a  person  to  whom  they  have  been  legally 
negotiated ;  and  it  is  clear  that  notes,  should  they  fall  into  possession 
otherwise  than  in  a  due  course  of  circulation,  do  not  become  the  proper- 
ty of  the  person  into  whose  hands  they  come,  but  may  be  followed  by  the 
original  possessor,  (w) 

So,  if  a  factor  sell  the  goods  of  his  employer  for  money  payable  at  a 
future  day,  and  become  bankrupt,  and  the  assignees  receive  the  money, 
they  will  be  answerable  for  it  to  the  merchant  by  whom  the  factor  was 
employed,  (x) 

In  another  case  the  conversion  had  been  in  hreacJi  of  the  factor's 

(o)  Ex  parte  Gennys,  1  Mont.  &  Mac.  258  ;  Houghton  v.  Kocnig,  18  Com.  B. 
Re.  235. 

(p)  See  Winch  v.  Keeley,  1  T.  R.  619  ;  Carpenter  v.  Marnell,  3  B.  &  P.  40 ;  Glad- 
stone V.  Hawden,  1  M.  &  S.  517. 

(q)  Howard  v.  Jemmet,  3  Bur.  1369,  per  Lord  Mansfield;  Ex  parte  Butler,  1  Atk. 
213,  per  Lord  Hardwicke  ;  Viner  v.  Cadell,  3  Espin.  88  ;  Farr  v.  Newman,  4  T.  R. 
629,  per  Grose,  J.;  see  Ex  parte  Ellis,  1  Atk.  101. 

(r)  Godfrey  v.  Furzo,  3  P.  W.  186,  per  Lord  King;  Tooke  t.  Hollingworth,  5  T. 
R.  226,  per  Lord  Kenyon;  L'Apostre  v.  Le  Plaistrier,  cited  Copeman  v.  Gallant,  1 
P.  W.  318  ;  Delauney  v.  Barker,  2  Stark.  539;  Boddy  y.  Esdaile,  1  Car.  &  P.  62  ; 
see  Ex  parte  Dumas,  2  Ves.  582  ;  S.  C.  1  Atk.  232  ;  Paul  v.  Birch,  2  Atk.  623  ; 
Rvall  V.  Rolle,  1  Atk.  172;  Ex  parte  Chion,  note  (A)  to  Godfrey  v.  Furzo,  3  P, 
W.  187. 

(s)   See  Taylor  v.  Plumer,  3  M.  &  S.  575  ;  Scott  v.  Surman,  Willcs,  404. 

[t)  Tooke  V.  Hollingworth,  5  T.  R.  227,  per  Lord  Kenyon  ;  see  Taylor  v.  Plu- 
mer, 3  M.  &  S.  571. 

(u)  Miller  v.  Race,  1  Bur.  457,  per  Lord  Mansfield;  see  Taylor  v.  Plumer,  3  M. 
&S.  571. 

(v)  Anon,  case,  cited  Ex  parte  Dumas,  2  Ves.  586. 

(w)  Hartop  v.  Hoare,  3  Atk.  50,  per  Lee,  C.  J.;  Miller  v.  Race,  1  Burr.  457. 

(x)  Ryall  V.  Rolle,  1  Atk.  172,  per  Burnet,  J.;  Taylor  v.  Plumer,  3  M.  &  S.  577  ; 
Zlnck  V.  Walker,  2  W.  Bl.  1154  :  Garrat  v.  CuUum,  BulL  N.  P.  42. 


268  LEWIN    ON    THE    LAAV    OF    TRUSTS,    ETC. 

fjuty  ;(y)  and  it  was  argued,  that,  as  the  principal  would  not  have  been 
bound  to  accept  the  property  which  the  agent  had  wrongfully  purchased, 
the  court  ought  to  give  a  lien  to  the  principal  upon  the  tortious  acquisi- 
tion ;  but  the  court  said,  it  was  impossible  that  an  abuse  of  trust  could 
confer  any  right  on  the  person  abusing  it,  or  those  claiming  in  privity 
with  him.(2;) 

Where  the  legal  property  does  not  pass,  any  action  against  the  assig- 
nees must  be  brought  by  the  bankrupt  himself,  for  he  is  the  person 
possessed  of  the  legal  right  5(22)  but,  in  the  case  of  a  factor,  an  action 
mav  also  be  brought  by  the  principal,  for  the  absolute  property  remains 
with  the  employer,  and  a  special  property  only  vests  in  the  agent.(a) 
But,  if  hills  be  remitted  to  a  factor,  and  made  payable  to  him  or  his 
order,  it  has  been  doubted  whether  the  property  does  not  so  vest  in  the 
*factor  that  no  action  of  trover  can  be  maintained  by  the  princi- 
L  -^'^J  pal.(i) 

If  the  property  possessed  by  the  bankrupt  in  his  character  of  trustee 
has  become  so  amalgamated  with  his  general  property  that  it  can  no 
longer  be  identified,  the  representative  of  the  trust  has  then  no  other 
remedy  but  to  come  in  as  a  general  creditor,  and  prove  for  the  amount 
of  the  loss.(o)  But,  in  one  case,  though  the  trust  money  had  got  into 
the  general  fund,  it  was  held,  but  under  very  particular  circumstances, 
that  it  had  subsequently  got  out  again.(^d'^ 

As  a  general  rule,  where  the  bankrupt  has  a  substantial  beneficial 
interest,  however  small,  in  property  legally  vested  in  him,  such  property 
passes  to  the  assignees,  who  take  as  trustees  for  the  creditors  and  other 
parties  interested. (e)  It  is  conceived,  however,  that  the  rule  would  not 
apply  to  a  case  where  a  bankrupt  is  clearly  and  expressly  a  trustee, 
though  he  may  himself  have  some  partial  beneficial  interest,  for  his  act 
ought  not  to  work  a  prejudice  to  others.  And  there  can  be  little  doubt 
that  the  court  would,  in  a  case  of  express  trust,  appoint  new  trustees, 
either  under  the  130th  section  of  the  Bankrupt  Consolidation  Act^/)  or 
its  general  jurisdiction.  Where  the  trust  is  constructive  and  the  equity 
doubtful  the  court  has  sometimes  directed  the  assignees  to  concur  in 
conveying. (y)  And  where  the  legal  property  passes,  the  cestuis  que 
trust  may  have  the  same  relief  in  equity  against  the  asssignees,  as  they 
would  have  been  entitled  to  against  the  bankrupt  himself.(/i) 

(y)  Taylor  v.  Plumer,  3  M.  &  S.  562  ;  see  Rvall  v.  Rolle,  1  Atk.  172. 

[z]  Taylor  v.  Plumer,  3  M.  &  S.  574,  per  Lord  Ellenborough. 

(zz)  Winch  v.  Keeley,  1  T.  R.  619;  Carpenter  v.  Maruell,  3  B.  &  P.  40. 

(a)  L'Apostre  v.  Le  Plaistrier,  cited  Copeman  v.  Gallant,  1  P.  W.  318;  Dclau- 
ney  v.  Barker,  2  Stark.  539;  Boddy  v.  Esdaile,  1  Car.  62. 

(b)  Ex  parte  Dumas,  2  Ves.  583. 

(c)  Ex  parte  Dumas,  1  Atk.  234,  per  Lord  Hardwicke  ;  Ryall  v.  Rolle,  1  Atk. 
172,  per  Burnet,  J.;  Scott  v.  Surman,  Willes,  403,  404,  per  Willes,  C.  J. 

{d)  Ex  parte  Sayers,  5  Ves.  169. 

(e)  Carpenter  v.  Marnell,  3  Bos.  &  Pull.  40 ;  Parnham  v.  Hurst,  8  M.  &  W.  743; 
Leslie  V.  Guthrie,  1  Bing.  N.  C.  697 ;  D'Arnay  v.  Chesneau,  13  M.  &  W.  809. 

(/)  Ex  parte  Cousen,  1  De  Gex,  451 ;  in  which  particular  case,  however,  the 
wording  of  the  section  created  a  difficulty. 

iff)  Bennet  v.  Davis,  2  P.  W.  316 ;  Ta'ylor  v.  Wheeler,  2  Vern.  564 ;  Ex  parte 
Gennys,  Mont.  &  Mac.  258. 

(h)  Bennet  v.  Davis,  2  P.  W.  316;  Taylor  v.  Wheeler.  2  Vern.  564;  Mitford  v. 


OF    THE    LEGAL    ESTATE    IN    THE    TRUSTEE.  209 

*By  the  12  &  13  V.  c  106,  s.  125,  it  is  enacted,  that  '<  if  r^oy^-i 
any  bankrupt,  at  the  time  he  becomes  bankrupt,  shall  by  the  L  "  J 
consent  and  permission  of  the  true  owner  thereof  ha-Ye  in  his  possession, 
order,  or  disposition,  any  goods  or  chattels  whereof  he  was  reputed 
owner,  or  whereof  he  had  taken  upon  him  the  sale,  alteration,  or  dispo- 
sition as  owner,  the  court  shall  have  power  to  order  the  same  to  be  sold 
and  disposed  of  for  the  benefit  of  the  creditors  under  the  bankruptcy." 

It  has  been  decided  that  this  enactment  does  not  apply  where  the 
possession  of  the  goods  by  the  bankrupt  can  be  satisfoctorily  accounted 
for  by  the  circumstances  of  the  title,  as,  if  a  trustee  be  in  possession  of 
effects  upon  trust  for  payment  of  debts,  and  become  bankrupt,(i)  or  if 
goods  be  vested  in  A.  upon  trust  to  permit  B.  to  have  the  enjoyment 
during  his  life,  and  B.  becomes  bankrupt  while  in  possession  under  his 
equitable  title  ;[k)  but  if  a  residue  be  given  to  trustees  upon  trust  to  sell 
with  all  convenient  speed,  and  to  invest  the  proceeds  in  the  purchase  of 
an  annuity  for  the  lives  of  A.  (one  of  the  trustees)  and  her  children,  the 
amount  to  be  paid  to  A.  for  the  benefit  of  the  children  :  if,  instead  of 
selling,  the  trustees  permit  A.  to  retain  possession  for  a  length  of  time, 
the  goods  are  forfeited,  such  possession  being  contrary  to  the  title. (/) 

The  enactment  does  not  extend  to  a  lawful  and  necessary  possession 
en  aider  droit,  as  that  by  executors  and  administrators  5 (m)  but  there  will 
be  no  exemption  from  the  forfeiture  if  the  executor  can  be  proved  to 
have  dismissed  the  character  of  personal  representative,  and  to  have 
assumed  that  of  absolute  owner.  («) 


[*278] 


*Whether  the  permission  of  a  bare  trustee  can  be  said  to  be 
that  of  the  "true  owner,"  to  the  prejudice  of  innocent  cestnis 
que  trvat,  is  a  question  of  some  difficulty,  but  which  upon  principle 
should,  it  is  conceived,  be  answered  in  tlae  negative.  (0)  It  has  been 
decided  that  a  cestui  que  trust  absolutely  entitled  is  a  true  owner  within 
the  meaning  of  the  clause. (^) 

Upon  the  same  principle  must  be  excepted  from  the  operation  of  the 
clause  the  possession  of  goods  by  factors  in  the  ordinary  course  of 
trade.  (^) 

Mitford,  9Ves.  100,  per  Sir  W.  Grant;  Ex  parte  Dumas,  2  Ves.  585,  per  Lord  Hard- 
wicke;  Hinton  v.  Hinton,  2  Ves.  633,  per  eundern ;  Grant  v.  Mills,  2  V.  &  B.  309, 
per  SirW.  Grant;  Tyrrell  v.  Hope,  2  Atk.  558;  Bowles  v.  Rogers,  6  Ves.  95, 
note  (a) ;  Ex  parte  Hanson,  12  Ves.  349,  per  Lord  Eldon ;  Ex  parte  Coysegame,  1 
Atk.  192;  see  Mestaer  v.  Gillespie,  II  Ves.  624;  Ex  parte  Herbert,  13  Ves.  188  ; 
Waring  v.  Coventry,  2  M.  &  K.  406.  (i)  Copeman  v.  Gallant,  1  P.  W.  314. 

(k)  Ex  parte  Martin,  19  Ves.  491 ;  S.  C.  2  Rose,  331 ;  see  Ex  parte  Horwood,  1 
Mont.  &  Mac.  169  ;  Mont.  24;  Jarman  v.  Wooloton,  3  T.  R.  618  ;  Ex  parte  Massey, 
2  Mont.  &  Ayr.  173;  Ex  parte  Elliston,  2  Mont.  &  Ayr.  365 ;  Ex  parte  Greaves,  2 
Jur.  N.  S.  651 ;  Re  Bankhead's  Trust,  2  Kay  &  Johns.  560. 

{I)  Ex  parte  Moore,  2  Mont.  D.  &  De  G.  616 ;  and  see  Fox  v.  Fisher,  3  B.  &  A. 
135;  Ex  parte  Thomas,  3  Mont.  D.  &  De  G.  40. 

{m)  Ex  parte  Marsh,  1  Atk.  158  ;  Joy  v.  Campbell,  1  Sch.  &  Lef.  328. 

{n)  Fox  V.  Fisher,  3  B.  &  A.  135 ;  Ex  parte  Moore,  2  Mont.  Deac.  &  De  G.  616 ; 
Ex  parte  Thomas,  3  Mont.  Deac.  &  De  G.  40  ;  see  Quick  v.  Staines,  1  B.  &  P.  293 ; 
Whale  V.  Booth,  cited  Farr  v.  Newman,  4  T.  R.  625,  note  [a). 

{0)  Compare  Ex  parte  Dale,  Buck,  365 ;  Ex  parte  Richardson,  Buck,  480 ;  Ex 
parte  Ilorwood,  1  Mont.  &  Mac.  169,  Mont.  24;  Viner  v.  Cadell,  3  Esp.  88. 

(p)  Ex  parte  Burbridge,  1  Deac.  131,  4  Deac.  &  Ch.  87. 

{q)  Mace  v.  Cadell,  Cowp.  232;  Ex  parte  Pease,  19  Ves.  46,  per  Lord  Eldon; 

February,  1858.— 18 


270  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

2.  By  the  Insolvent  Act  the  real  and  personal  estates  of  insolvents 
are  made  to  vest  in  the  assignees,  and  where  goods  or  chattels  are  in  the 
possession  of  an  insolvent  at  the  time  of  his  arrest  or  other  commence- 
ment of  his  imprisonment  by  the  consent  of  the  true  owner,  they  are 
made  to  pass  to  the  assignee  as  if  they  were  the  insolvent's  own  pro- 
perty.(r) 

Upon  this  enactment  of  the  Insolvent  Act  we  have  only  to  remark, 
that,  as  it  substantially  follows  the  provisions  of  the  Bankruptcy  Act,  it 
must  in  the  analogous  cases  be  governed  by  the  same  construction. 

3.  Judgments,  at  least  so  far  as  they  affect  lands  {iox  execution 
against  goods  and  chattels  is  by  common  law,)  derive  their  effect  from 
certain  statutory  enactments. (s) 

Had  trusts  been  established  at  the  time  these  statutes  were  passed, 
the  construction  would  probably  have  been  the  same  as  in  the  case  of  the 
bankruptcy  and  insolvency  acts,  that  is,  judgments  would  have  been 
held  to  bind  those  lands  only  of  which  the  conusee  was  seised  beneficially, 
but  trusts  at  the  period  of  which  we  are  speaking  had  not  made  their 
appearance,  and  therefore  judgments  have  been  held  to  bind  all  lands 
r*97on  *°^  ^^^  conusee,  whether  vested  in  him  beneficially,  or  in  the 
L  "  J  character  of  trustee.  But  of  course  the  cestui  que  trust  will 
be  protected  from  the  legal  process  by  application  to  a  court  of  equity.(^) 


SECTION  III. 

WHAT  PERSONS  TAKING   THE   LEGAL   ESTATE   WILL   BE   BOUND   BY  THE 

TRUST. 

The  universal  rule,  as  trusts  are  now  regulated,  is,  that  all  persons 
who  take  through  or  under  the  trustee  shall  be  liable  to  the  execution 
of  the  trust. 

On  the  death  of  the  trustee,  the  heir,  executor,  or  administrator, 
becomes  the  legal  owner  of  the  property ;  but  as  he  merely  represents 
the  ancestor,  testator,  or  intestate,  he  takes  it  in  the  same  character,  and 
is  therefore  bound  by  the  same  equity. 

So,  if  a  trustee  devise  the  estate,  the  devisee  takes  the  estate  subject 
to  the  trust.(i<) 

So  all  assigns  of  the  trustee  by  acts  inter  vivos  (exceTpt  purchase7-s  for 
valuable  consideration  icithout  notice,)  will  be  bound  by  the  trust.(r) 

During  the  system  of  uses,  and  even  for  a  short  time  subsequently  to 

L'Apostre  v.  Le  Plaistrier,  cited  Copeman  v.  Gallant,  1  P.  W.  318 ;  Whitfield  v. 
Brand,  16  M.  &W.  282. 

(r)  1  &  2  Vict.  c.  110,  ss.  3T,  57  ;  and  see  5  &  6  Vict.  c.  116,  s.  1 ;  7  &  8  Vict. 
c.  96,  ss.  4,  17. 

(s)  11  E.  1 ;  13  E.  1,  St.  1,  c.  18;  13  E.  1,  st.  3 ;  27  E.  3,  st.  2,  c.  9 ;  see  Co.  Lit. 
289,  b.  ')!))) 

r>S^^  Z^^^^  ^'  ^^^^  °^  Winchelsea,  1  P.  W.  277  ;  Burgh  v.  Francis,  1  Eq.  Ca.  Ab. 
320;  Medley  V.  Martin,  Finch,  63  ;  Prior  v.  Penpraze,  4  Price,  99;  Langton  v.  Hor- 
ton,  1  Hare,  560,  per  Sir.  J.  Wigram. 

(m)  Marlow  v.  Smith,  2  P.  W.201,  per  Sir  J.  Jekyll ;  Lord  Grenville  v.  Blvth,  16 
Ves.  231,  per  Sir  W.  Grant.  (^)  See  infra. 


[*281] 


OF    THE    LEGAL    ESTATE    IN    THE    TRUSTEE.  271 

the  statute  of  H.  8,  assigns  of  the  trustee  in  the  per  only,  that  is,  by 
the  immediate  act  of  the  trustee,  as  by  assignment,  were  made  liable  to 
the  trust ;  but  now  assigns  in  the  post,  or  by  operation  of  law,  are  also 
invested  with  the  character  of  trustees ;  as  if  a  trustee  marry,  the  wife  is 
at  laio  entitled  to  her  dower,  and  if  a  female  trustee  marry,  the  husband 
is  at  law  entitled  to  his  curtesy,  but  in  equity  both  the  doioress{iv)  and 
tenant  hy  the  curtesy{x)  are  compellable  to  recognise  the  right  of  the  ces- 
tui que  trust.  So  a  creditor  of  the  *trustee  extending  the  trust  r*2801 
estate  under  an  elegit,{ij)  or  taking  a  trust  chattel  by  writ  of  exe-  L  J 
cution,(,i)  and,  by  the  same  rule,  the  assignees  of  a  bankrupt  or  insolvent(a) 
are  made  subject  to  the  equity. 

And  if  the  trustee  commit  a.  forfeiture,  the  lord,  as  he  succeeds  to  the 
identical  estate  of  the  forfeitor,  must  take  the  property  with  all  the 
engagements  and  incumbrances  attached  to  it,  and  is  therefore  liable  to 
the  trust.(6)  In  the  case  of  a  forfeiture  to  the  king,  it  was  formerly 
held  there  was  no  equity  against  the  crown  ;(c)  but  in  modern  times  the 
equity  has  been  fully  admitted,  though  the  precise  nature  of  the  remedy 
has  never  been  distinctly  ascertained. (cZ) 

A  lord  taking  by  escheat  stands  on  a  somewhat  different  footing,  for 
he  is  not  an  assign  of  the  trustee  either  in  the  per  *or  post ;  nor 
does  he,  as  in  forfeiture,  succeed  to  the  place  of  the  trustee,  but 
claims  by  a  title  paramount  of  his  own,  by  virtue  of  a  condition  originally 
annexed  to  the  land,  and  wholly  independent  of  the  creation  of  the  trust. 

(w)  Pawlett  V.  Attorney-General,  Hard.  469,  per  Lord  Hale ;  Noel  v.  Jevon, 
Freem.  43  ;  Hinton  v.  Hinton,  2  Ves.  634,  per  Lord  Hardwicke. 

(x)  Bennet  v.  Davis,  2  P.  W.  319. 

(y)  Pawlett  V.  Attornej'-General,  Hard.  467,  per  Lord  Hale;  Kennedy  v.  Daly. 
1  Sch.  &  Lef.  373,  per  Lord  Redesdale ;  Finch  v.  Earl  of  Winchelsea,  1  P.  W.  277  ; 
Burgh  V.  Burgh,  Rep.  t.  Finch,  28.  In  the  late  case  of  Whitworth  v.  Gaugain,  1 
Cr.  &  Phil.  325,  where  a  person  made  a  deposit  of  title  deeds,  and  then  a  judgment 
was  entered  up  against  him,  Lord  Cottenham  expressed  a  doubt  whether  the 
judgment  creditor,  if  he  had  no  notice,  would  be  bound  by  the  prior  equity.  How- 
ever, such  a  doctrine  was  not  tenable,  for  a  judgment  creditor  is  7iot  a  purchaser 
for  valuable  consideration.  Brace  v.  Duchess  of  Marlborough,  2  P.  W.  491.  He 
advances  money,  but  not  on  the  security  of  this  estate.  He  may  take  the  person 
of  his  debtor,  or  his  goods  and  chattels,  and  if  he  is  put  in  possession  of  the  lands, 
it  is  not  as  purchaser  of  them,  but  by  course  of  law.  The  cause  was  afterwards 
heard,  and  Lord  Cottenham's  doubts  were  displaced  by  a  decision  the  other  way, 
3  Hare,  416;  1  Phil.  728.  In  Watts  v.  Porter,  Q.  B.  1  Jur.  N.  S.  134,  three  of  the 
four  judges,  while  approving  of  Whitworth  v.  Gaugain,  refused  to  apply  the  prin- 
ciple of  ft  to  a  case  of  stock.  The  remaining  judge  differed,  and  held  that  in  per- 
sonal as  in  real  estate,  the  specific  incumbrancer,  though  he  gives  no  notice  to 
the  trustee,  prevails  over  the  judgment  creditor,  though  he  has  obtained  a  charg- 
ing order.  It  is  conceived  that  the  single  judge  took  the  clearer  view.  Those 
who  determined  the  other  way,  seem  to  have  assumed  that  notice  was  necessary 
for  the  transfer  of  an  equitable  interest,  which  is  not  true,  as  between  assignor 
and  assignee,  but  only  as  between  two  contending  assignees.  The  case  has  since 
been  disapproved  by  the  highest  authorities,  Beavan  v.  Lord  Oxford,  2  Jur.  N.  S. 
12L 

(z)  Foley  v.  Burnell,  1  B.  C.  C.  278,  per  Lord  Thurlow. 

(a)  See  supra,  p.  276. 

(b)  Burgess  v.  Wheate,  1  Ed.  203,  per  Sir  T.  Clarke;  ib.  252,  per  Lord  Henley. 

(c)  Wikes's  case,  Lane,  54,  agreed. 

(d)  Burgess  v.  Wheate,  1  Ed.  252 ;  and  see  Pawlett  v.  Attorney-General,  Hard. 
467,  which  was  a  case  of  forfeiture,  though  treated  by  Lord  Hale  as  a  case  of 
escheat.     And  see  supra,  p.  30. 


.>72       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

Lord  Mansfield  was  of  opinion,  in  Burgess  v.  Wheate,  that  a  trust  ought 
to  be  binding  on  the  lord ;  whether  the  escheat  was  to  be  looked  upon 
as  a  reversion,  which  it  once  was,  or  as  a  caducary  possession  ah  intestato, 
which  his  lordship  conceived  it  to  be  in  his  day.(e)  Considering  the 
escheat  as  a  reversion,  his  lordship  contended  that  every  alienation  for 
creatino-  a  trust  supposed  a  concomitant  investiture  to  which  the  assent 
of  the  lord  was  implied,  and  therefore  it  followed  that,  on  failure  of  heirs 
of  the  alienee  in  trust;  the  lord  could  not  claim  to  his  own  use  against 
the  terms  of  the  grant.  But  to  this  it  may  be  answered — first,  that,  since 
the  Statute  of  Quia  Emptores,  it  is  doubtful,  whether  any  such  assent  of 
the  lord  can  be  supposed ;  for,  should  it  be  optional  with  the  lord  to 
accept  the  alienee  as  his  tenant  or  not,  it  would  abridge  the  subject  of 
that  free  power  of  alienation  which  the  statute  was  intended  to  confer 
upon  him.  On  the  execution  of  the  conveyance  the  alienee  holds  of  the 
lord  above,  not  by  the  lord's  consent,  but  by  the  operation  of  law.  But 
even  admitting  the  lord  to  have  assented  by  implication  to  the  transfer 
of  the  land,  it  scarcely  seems  to  follow  that  he  is  bound  by  the  terms  of 
the  trust ;  for  if  A.  convey  to  B.  and  his  heirs  in  trust  for  C.  and  his 
heirs,  the  assent  of  the  lord  to  the  alienation  appears  to  amount  only  to 
this — that  B.  and  his  heirs  shall  be  tenants  of  the  estate,  and  shall,  as 
such  tenants,  hold  in  trust  for  C.  and  his  heirs,  not  that  the  lord  himself 
will  execute  the  trust,  should  his  own  title  commence  by  the  determina- 
tion of  B.'s  estate.  But  even  supposing  the  lord  to  have  expreasJij  agreed 
to  execute  the  trust  in  the  event  of  an  escheat,  still,  as  on  failure  of  heirs 
of  the  trustee  the  legal  estate  of  the  property  becomes  vested  in  the  lord, 
could  equity,  consistently  with  established  principles,  enforce  a  convey- 
ance against  him  on  a  mere  voluntary  contract  ?  The  verbal  agreement 
-^  of  the  lord  could  in  no  wise  be  construed  a  declaration  of  trust, 
L  "'-'  for,  *by  the  Statute  of  Frauds,  every  such  declaration  must  be  in 
writing  and  signed.  Considering  the  escheat  in  the  light  of  a  caducary 
possession  ah  intestato,  his  lordship's  argument  was,  that,  as  the  lord  can 
only  take  the  estate  ah  intestato  ahsolutely,  he  cannot  assert  a  claim  so 
far  as  the  tenant  has  aliened,  and  inasmuch  as  the  trustee  by  a  declara- 
tion of  trust  makes  a  valid  disposition  of  the  estate  in  equity,  it  follows 
that  a  court  of  equity  cannot  sufi"er  the  land  to  vest  in  the  lord,  as  if  no 
disposition  had  been  made.  But  to  this  it  may  be  answered,  that  a  dis- 
position hy  loay  of  trust  is  of  a  totally  difterent  character  from  a  dispo- 
sition of  the  legal  estate.  The  latter  is  binding  upon  all,  whether  in  the 
2)er  ox  post,  whether  with  notice  or  without,  whether  the  grantee  be  a 
purchaser  or  volunteer ;  but  the  existence  of  a  trust  depends  on  the 
equity  against  the  legal  tenant  personally  ;  as,  if  the  estate  be  purchased 
for  a  valuable  consideration  without  notice,  the  trust  is  determined,  and 
the  cestui  que  trust  is  without  remedy.  It  follows  that,  as  the  lord  claims 
by  a  title  of  his  own  paramount  to  the  creation  of  the  trust,  the  court 
cannot  take  from  him  a  lawful  possession  upon  the  ground  of  a  trust 
declared  by  a  stranger,  and  that  subsequent  to  the  commencement  of  the 
lord's  right.      A  trust  is  binding  only  as  hetween  the  cestui  que  trust  and 

{e)  Burgess  v.  Wheate.  1  Ed.  229. 


OF    THE    LEGAL     ESTATE    IN    THE    TRUSTEE.  273 

the  trustee,  and  all  claiming  hy  and  imder  them,  and  does  not  affect  the 
interest  of  a  third  person. (/)  If  an  estate  were  settled  on  A.  and  his 
heirs,  with  a  springing  use  on  a  certain  event  to  B.  and  his  heirs,  a 
declaration  of  trust  in  fee  by  A.  could  not  possibly,  on  the  determination 
of  A.'s  estate,  bind  the  interest  of  B. ;  yet  such  a  limitation  over  is  hardly 
to  be  distinguished  from  the  case  of  the  lord's  title  by  escheat.  The 
only  authorities  adduced  by  his  lordship  in  support  of  his  position  were 
the  opinions  said  to  have  been  expressed  by  Lord  Chief  Justice  Bridgman 
and  Sir  John  Trevor  :(r/)  but  the  words  attributed  to  the  former  appear, 
from  his  own  note-book,  never  to  have  been  spoken  ;(/i)  and  the  observa- 
tion of  Sir  John  Trevor  was  at  the  utmost  a  mere  obiter  dictum.  Sir 
Thomas  *Clarke,  who  assisted  with  Lord  Mansfield  in  the  case  of  r*283'l 
Burgess  v.  Wheate,  declared  ihs^t  cestui  que  trust  was  no  more  re-  L  ""  J 
lievable  against  the  lord  by  escheat,  than  against  a  sale  by  the  trustee  to 
a  purchaser  without  notice  ;(i)  and  Lord  Northington's  inclination  was 
apparently  the  same  way,  though,  as  the  point  was  not  necessarily  involved 
in  the  question  before  him,  he  refused  to  conclude  himself  by  any  express 
and  direct  opinion. (Z;)  Trusts  also  are  shaped  after  the  pattern  of  uses, 
and  it  is  clear  that  the  lord  was  not  bound  by  a  use. 

On  the  other  hand  it  may  be  said  that,  whatever  may  be  right  on  dry 
technical  reasoning,  there  is  an  old  authority  for  holding  that  the  lord 
taking  by  escheat  is  liable  to  the  trust,(?)  and  that  in  modern  times  the 
courts  have  acted  on  more  liberal  principles,  and  have  decided  that,  where 
the  fee  out  of  which  a  mortgage  term  had  been  carved  escheated  to  the 
lord,  he  was  allowed  to  redeem,(??i)  and  if  the  lord  take  a  benefit  through 
the  tenant  why  shall  he  not  sustain  an  onus  ?  Indeed  an  opinion  to  that 
effect  has  recently  fallen  from  the  bench  in  Ireland, (?i)  and  should  the 
point,  notwithstanding  the  13  &  14  Vict.  c.  60,  to  be  noticed  presently, 
ever  call  for  a  decision,  it  is  not  unlikely  that  the  court  may  adopt  that 
view. 

In  copyholds  there  is,  properly  speaking,  no  such  thing  as  escheat. 
The  freehold  and  inheritance  are  vested  in  the  lord  of  the  manor,  and 
the  tenant  has  no  claim  but  as  the  lord  signifies  his  pleasure  by  the  entry 
on  the  court  roll.  If  the  tenant  be  a  trustee,  and  no  trust  appears  on  the 
roll,  there  can  be  no  pretence  for  charging  the  lord  with  an  equity  to 
which  he  never  assented  ;{o)  but  if  a  surrender  be  made  upon  a  trust 
either  expressed  or  referred  to  on  the  roll,  the  lord  is  estopped  by  this 
evidence  of  his  will,  and  cannot  afterwards  claim  in  contradiction  to  his 
grant,  (p) 

(/)  Burgess  v.  Wheate,  1  Ed.  251,  per  Lord  Northington.  See  lutroductiou. 
pp.  12,  13. 

Ig)  Burgess  v.  Wheate,  1  Ed.  230.  . 

(h)  See  ib.  230,  note  (a) ;  and  see  Sir  T.  Clarke's  observations,  ib.  202. 

\i)  Burgess  v.  Wheate,  1  Ed.  203.  {k)  Burgess  v.  Wheate,  1  Ed.  24b. 

{I)  Bales  v.  England,  1  Eq.  Ca.  Ab.  384. 

{m)  Viscount  Downe  v.  Morris,  3  Hare,  394. 

(n)  White  v.  Baylor,  10  Ir.  Eq.  Rep.  54.  :,  t>      i. 

(o)  Attorney-General  v.  Duke  of  Leeds,  2  M.  &  K.  343  ;  and  see  Peachey  v. 
Duke  of  Somerset,  1  Str.  454;  Burgess  v.  Wheate,  1  Ed.  231  ,,     ,      „  „ 

(p)  Burgess  v.  Wheate,  1  Ed.  231,  per  Lord  Mansfield;  Weaver  v.  Maule,  2  U. 
&  M.  97. 


274       LEW  IN  ON  THE  LAW  OF  TRUSTS,  ETC. 

Customary  freeJiolds  have  often  been  treated  on  the  same 
[  ^o4J  *fQQjijjg  ^ith  copyhoIdSj(2)  but  perhaps  upon  principle  a  clear 
distinction  may  be  taken.  In  customary  freeholds  the  tenure  is  copy- 
hold, but  in  respect  of  interest  the  freehold  and  inheritance  are  in  the 
tenant,  and,  on  failure  of  his  heirs,  the  lord  takes  in  the  strict  sense  of 
the  word  by  escheat.  The  lands  are  passed  by  the  bargain  and  sale,  and 
the  subsequent  surrender  and  admittance  operate  merely  as  notice  to  the 
lord  of  the  transfer,  and  acceptance  by  him  of  the  grantee  as  tenant.(>-) 
If  a  surrender  therefore  be  made  to  A.  and  his  heirs  upon  trust  for  B. 
and  his  heirs,  and  the  trust  be  entered  on  the  roll,  the  effect  would  be 
the  same  as  on  the  alienation  of  a  freehold  ;  the  lord  merely  assents  that 
A.  shall  be  his  tenant,  and  shall,  as  tenant,  hold  the  land  upon  certain 
trusts,  not  that  the  lord  himself  will  be  a  trustee,  should  his  own  title 
commence  by  escheat.  And  even  should  the  construction  be  carried  to 
that  extent,  the  cestui  que  trust  would  still  not  be  relievable  in  equity, 
the  agreement  being  merely  a  voluntary  one,  and  not  in  writing  and 
signed  as  required  by  the  Statute  of  Frauds. 

A  distinction  was  taken  by  Lord  Hale  between  a  trust  and  an  equity 
of  redemption.  "  A  trust,"  said  his  lordship,  "  is  created  by  the  con- 
tract of  the  party,  and  he  may  direct  it  as  he  pleaseth,  and  he  may  pro- 
vide for  the  execution  of  it,  and  therefore  one  that  comes  in  in  the  post 
shall  not  be  liable  to  it  without  express  mention  made  by  the  party ;  and 
the  rules  for  executing  a  trust  have  often  varied,  and  therefore  they  only 
are  bound  by  it,  who  come  in  in  privity  of  estate  ;  but  a  power  of  redemp- 
tion is  an  equitable  right  inherent  in  the  land,  and  binds  all  persons  in 
the  |JOs^  or  otherwise,(s)  because  it  is  an  ancient  right  which  the  party  is 
entitled  to  in  equity.'Y/)  But  upon  this  distinction  it  must  be  observed, 
that  even  a  trust  will  at  the  present  day  bind  persons  who  take  deriva- 
tively from  the  trustee,  though  in  the  'post;  and  notwithstanding  an 
equity  of  redemption  amounts  to  what  Lord  Hale  calls  a  title,(yj  there 
r*'?fiSl  *^^^^^  ^^  ^6  ^0  reason  why  in  the  case  of  escheat  the  lord,  who 
L  "^  -*  takes  by  title  paramount,  should  be  bound  by  an  equity  of  redemp- 
any  more  than  by  a  simple-  trust.(«) 

In  a  late  case,(w)  however,  the  distinction  between  an  equity  of 
redemption  and  a  trust  was  observed  upon,  and  the  court  manifested  an 
opinion  that  a  lord  who  was  in  by  escheat  would  be  bound  by  an  equity 
of  redemption,  if  not  by  a  trust.  And  in  the  same  case  was  decided  the 
point  before  referred  to,  that  a  lord  who  is  in  by  escheat  is  entitled  to  re- 
deem a  mortgage  term  created  by  the  party  whose  estate  has  .escheated. (x) 

[q)  Weaver  v.  Maule,  2  R.  &  M.  100,  per  Sir  John  Leach. 

{r\  Bingham  v.  Woodgate,  1  R.  &  M.  32. 

(«)  Semble  not  a  purchaser  without  notice;  see  Harding  v.  Hardrett,  Rep.  t. 
Finch,  9  ;  Spurgeon  v.  Collier,  1  Ed.  55. 

(t)  Pawlett  V.  Attorney-General,  Hard.  469;  and  see  Bacon  v.  Bacon,  Tothill, 
133;  Burgess  v.  Wheate,  1  Ed.  206;  Tucker  v.  Thurstan,  17  Yes.  133. 

M  See  Pawlett  v.  Attorney-General,  Hard.  46V. 

(v)  See  Burgess  v.  Wheate,  1  Ed.  255;  Attorney-General  v.  Duke  of  Leeds,  2 
M.  &  K.  344.  Pawlett  v.  Attorney-General,  Hard.  465,  in  which  Lord  Hale  and 
Baron  Atkins  thought  the  king  was  bound  by  an  equity  of  redemption,  was  not  a 
case  of  escheat,  as  called  by  Lord  Hale,  but  of  forfeiture. 

(w)  Viscount  Downe  v.  Morris,  3  Hare,  394.  (z)  Ibid. 


OF    THE    LEGAL    ESTATE    IN    THE    TRUSTEE.  275 

According  to  the  actual  state  of  the  decisions,  the  3  &  4  W.  4,  c. 
104,  (which  subjects  a  person's  real  estate  to  the  payment  of  his  simple 
contract  debts,)  annexes  the  quality  of  assets  to  the  estate  itself,  and, 
subject  to  the  right  of  alienation  in  the  heir  or  devisee,(^)  creates  a 
charge  on  the  estate  for  the  benefit  of  the  creditors. (2)  It  has  been  held, 
therefore,  that  a  debtor's  estate  is  assets  even  in  tne  hands  of  the  lord 
taking  by  escheat. (a) 

The  law  relating  to  the  forfeiture  and  escheat  of  trust  estates,  except 
so  far  as  it  illustrates  general  principles,  became,  upon  the  passing  of 
the  4  &  5  Will.  4,  c.  23,  of  little  importance.  By  sect.  2  of  that  act,  it 
was  enacted,  that  where  any  person  seised  of  any  lands  upon  any  trust, 
or  by  way  of  mortgage,  died  loithout  an  heir,  it  should  be  lawful  for  the 
Court  of  Chancery  (on  application  as  directed  by  the  act]  to  appoint  a 
person  to  convey.  And  by  the  following  section  it  was  declared,  that 
<'  no  land,  chattels,  or  stock,  vested  in  any  person  upon  any  trust  or  by 
way  of  mortgage,  or  any  profits  *thereof,  should  escheat  or  be  r^.^op-i 
forfeited  to  his  majesty,  his  heirs  or  successors,  or  to  any  corpora-  L  *"  J 
tion,  lord  of  a  manor,  or  other  person,  by  reason  of  the  attainder  or  con- 
viction for  any  ofi"ence  of  such  trustee  or  mortgagee,  but  should  remain 
in  such  trustee  or  mortgagee,  or  survive  to  his  co-trustee,  or  descend  to 
or  vest  in  his  representative,  as  if  no  such  attainder  or  conviction  had 
taken  place."  And  by  the  last  section  it  was  provided,  that  "where 
before  the  passing  of  the  act  any  person  possessed  of  land,  chattels,  or 
stock,  as  trustee  thereof,  should  have  died  without  an  heir,  or  should 
have  been  convicted  of  any  off'ence,  whereby  the  said  land,  chattels,  or 
stock,  had  escheated  or  been  forfeited,  the  said  land,  chattels,  or  stock 
should  be  subject  to  the  order  of  the  Court  of  Chancery  for  the  use  of 
the  party  beneficially  interested  therein,  the  proviso  not  to  affect  any 
grant  made  subsequently  to  the  escheat  or  forfeiture,  and  not  to  operate 
where  more  than  twenty  years  have  occurred  since  the  escheat  or  for- 
feiture." 

This  act  was  repealed  by  13  &  14  Vict.  c.  60,  whereby  it  was  enacted 
by  the  15th  sect,  that  «  when  any  person  seised  of  any  lands  upon  any 
trust,  should  have  died  intestate  as  to  such  lands  without  an  heir,  or  it 
should  not  be  known  who  was  his  heir  or  devisee,  it  should  be  lawful 
for  the  Court  of  Chancery  to  make  an  order  vesting  such  lands  in  such 
person  or  persons,  in  such  manner  and  for  such  estate  as  the  court  should 
direct;"  and  by  the  19th  sect,  it  was  enacted  that,  "when  a  mortgagee 
should  have  died  without  having  entered  into  possession,  and  the  mort- 
gage money  should  have  been  paid  to  a  person  entitled  to  receive  the 
same,  or  such  person  should  consent  to  the  order,  it  should  be  lawful  for 
the  Court  of  Chancery  to  make  an  order  vesting  such  lands  in  such 
person  or  persons,  in  such  manner  and  for  such  estate  as  the  court 

{y)  Spackman  v.  Timbrell,  8  Sim.  253;  Richardson  v.  Horton,  7  Beav.  112' 
Pimm  V.  Insall,  7  Hare,  193,  1  Mac.  &  Gor.  449. 

(z)  Evans  v.  Brown,  5  Beav.  116.  N.  B.  This  case  was  appealed  and  com- 
promised. Hamer's  Devisees,  2  De  Gex,  M.  &  G.  30G;  Beale  v.  Symonds,  16  Beav. 
406;  Kinderley  v.  Jervis,  2  Jur.  N.  S.  602. 

(a)  Evans  v.  Brown,  5  Beav.  116;  and  see  Viscount  Downe  v.  Morris,  3  Hare, 
394. 


27G       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

should  direct,  in  any  case  where  the  mortgagee  had  died  intestate  as  to 
such  lands,  and  without  an  heir,  or  should  have  died  and  it  should  not 
be  known  who  was  his  heir  or  devisee ;"  and  by  the  46th  sect,  it  was 
enacted  that,  "  no  lands,  or  stock,  chose  in  action,  vested  in  any  person 
upon  any  trust,  or  by  way  of  mortgage,  or  any  profits  thereof,  should 
escheat  or  be  forfeited  to  the  crown,  or  to  any  corporation,  lord  of  the 
manor  or  *any  other  person  by  reason  of  the  attainder  or  convic- 
[*287]  ^j^^  ^^^  ^jjy  offence  of  such  trustee  or  mortgagee."  Thus  of 
trust  property  in  future  there  will  be  no  forfeiture  by  the  attainder  or 
conviction  of  the  trustee,  and  no  escheat  Uj  his  attainder;  and  in  case  of 
escheat  for  failure  of  heirs  the  court  will  have  authority,  upon  summary 
application,  to  transfer  the  legal  estate. 

If  a  trustee  be  outlaxved,  and  the  outlawry  be  for  treason  or  felony,  it 
amounts  to  conviction,(6)  and  escheat  and  forfeiture  of  lands,  and  chattels, 
thou"-h  held  upon  trust,  would,  until  the  above  acts,  have  ensued,  but  is 
now  expressly  saved  by  it.  If  the  outlawry  be  on  an  indictment  for  a 
misdemeanor  or  in  a  personal  action,  it  is  not  a  conviction,  but  merely 
a  contempt  of  court,(c)  and  punishable  with  forfeiture  of  the  profits  of 
the  outlaw's  lands,  and  of  his  chattels,  real  and  personal,  absolutely. 
In  this  case,  therefore,  the  statute  not  applying,  the  forfeiture  remains 
the  same  as  at  common  law. 

If  the  trustee  become  hanhriipt,  and  do  not  surrender  himself,  &c., 
he  is  guilty  of  felony, (c7)  and  the  consequence  is,  that  his  lands  and 
goods  escheat  and  are  forfeited  as  in  felony  generally.  But  he  must 
first  be  convicted  of  the  offence  by  a  proper  court,  either  in  fact  by 
verdict  or  in  law  by  outlawry,  and  then  the  .above  statute  saves  the  for- 
feiture as  regards  trust  estates. 

A  disseisor  is  not  an  assign  of  the  trustee  either  in  the  ^^f''  or  the  post, 
but  holds  by  a  wrongful  title  of  his  own,  and  adversely  to  the  trust.  The 
first  resolution  in  Sir  Moyle  Finch's  case,  was,  that  <'a  disseisor  was 
subject  to  no  trust,  nor  any  subpoena  was  maintainable  against  him,  not 
only  because  he  was  in  the  2^osf,  but  because  the  right  of  inheritance  or 
freehold  was  determinable  at  the  common  law,  and  not  in  chancery, 
neither  had  the  cestui  que  use  (while  he  had  his  being)  any  remedy  in 
that  case. "(e)  And  we  may  add  the  authority  of  Lord  St.  Leonards, 
who,  in  his  edition  of  Gilbert  on  Uses,  observes,  <'At  this  day  every  one 
r*QQo-i  is  bound  by  a  trust  who  obtains  the  *estate  without  a  valuable 
L  "^  J  consideration,  or  even  for  a  valuable  consideration  if  with  notice, 
unless  perhaps  the  lord  by  escheat.  But  persons  claiming  the  legal 
estate  by  an  actual  disseisin,  without  collusion  with  the  trustee,  will  not 
be  bound  by  the  trust.  Therefore,  if  I  oust  A.,  who  is  a  trustee  for  B., 
and  a  claim  is  not  made  in  due  time,  A.  will  be  barred,  and  his  cestui 
que  trust  with  him,  although  I  had  notice  of  the  trust  ;"(/)(l)  and  the 

(b)  Co.  Lit.  390  b. ;  Holloway's  case,  3  Mod.  42  ;  King  v.  Ayloff,  ib.  Y2. 

(c)  Rex  V.  Tippin,  Salk.  494.  (d)  12  &  13  V.  c.  106,  s.  251. 
(e)  Sir  Moyle  Finch's  case,  4  Inst.  85.               (/)  Gilb.  on  Uses,  Sugd.  ed.  429. 

(1)  And  an  outstanding  term  in  a  trustee  will  attend  the  inheritance  gained  by 
the  disseisin.  Reynolds  v.  Jones,  2  Sim.  &  Stu.  206:  and  see  Turner  v.  Buck,  22 
Yin.  Ab.  21 :  Doe  v.  Price,  16  M.  &  W.  603. 


GENERAL    PROPERTIES    OF    OFFICE    OF    TRUSTEE.     277 

same  may  be  inferred  from  the  terms  of  the  section  of  the  late  Limitation 
Act  relating  to  express  trusts. (^) 


*CHAPTER   XII.  [*289] 

GENERAL  PROPERTIES  OF  THE  OFFICE  OF  TRUSTEE. 

From  the  estate  of  the  trustee  we  pass  to  the  consideration  of  his 
offi.ce,  and  upon  this  subject  we  may,  in  the  first  place,  investigate  the 
general  properties  annexed  to  the  ofiice,  as,  First.  A  trustee  having  once 
accepted  cannot  afterwards  renounce  it.  Secondly.  He  cannot  delegate 
it.  Thirdly.  In  the  case  of  co-trustees  the  ofiice  must  be  exercised  by 
all  the  trustees  jointly.  Fourthly.  On  the  death  of  one  trustee  the  trust 
will  pass  to  the  survivors  or  survivor.  Fifthly.  One  trustee  shall  not  be 
liable  for  the  acts  of  his  co-trustee.  Sixthly.  A  trustee  shall  derive  no 
personal  benefit  from  the  trusteeship. 

I.  It  is  a  rule,  without  any  exception,  that  a  person  who  has  once 
undertaken  the  office,  either  by  actual  or  constructive  acceptance,  cannot 
discharge  himself  from  liability  by  a  subsequent  renunciation.  The 
only  mode  by  which  he  can  obtain  a  release  is  either  under  the  sanction 
of  a  court  of  equity,  or  by  virtue  of  a  special  power  in  the  instrument 
creating  the  trust,  or  with  the  consent  of  all  the  parties  interested  in  the 
estate. (a) 

Thus,  where  A.  was  named  executor,  and  acted  in  behalf  of  some  par- 
ticular legatees,  but  disclaimed  the  intention  of  interfering  generally, 
and  then  renounced,  and  B.  obtained  letters  of  administration  cum  tcsta- 
mento  annexo,  and  possessed  himself  of  assets,  and  died  insolvent,  it  was 
held  thaf  A.  having  acted,  could  not  afterwards  discharge  himself,  and 
was  responsible  for  the  devastavit  committed  by  B.(6) 

*So,  in  another  case,  where  A.,  having  possessed  himself  of  r^^o(\C)-\ 
assets,  renounced  the  administration,  and  the  same  day  B.  proved  L  "  J 
the  will,  and  A.  handed  over  part  of  the  assets  to  him,  and  afterwards 
A.,  having  received  other  assets  by  authority  from  B.,  handed  them 
over  in  like  manner.  Sir  Thomas  Clarke  delivered  his  opinion,  that,  as 
A.  had  adnjinistered,  though  without  having  proved  the  will,  the  attempt 
at  renunciation  was  void,  and  he  ought  to  be  charged  with  all  the  subse- 
quent receipts. (c^ 

Though  a  trustee  may  have  given  a  bond  for  the  due  execution  of  the 
trust,  and  the  cestui  que  trust  may  have  recovered  upon  the  bond,  and 
been  paid  the  money,  yet  if  the  cestui  que  trust  afterwards  bring  his  bill 
to  compel  a  conveyance,  the  trustee  cannot  divest  himself  of  his  fiduciary 
character  by  pleading  that  the  penalty  of  the  bond  was  a  stated  damage 

{g)  3  &  4  W.  4,  c.  27,  s.  25,  compare  subsequent  observations  at  p.  722. 
(a)  See  Doyle  v.  Blake,  2  Sch.  &  Lef.  245  ;  Chalmer  v.  Bradlej,  1  J.  &  W.  68. 
(6)  Doyle  v.  Blake,  2  Sch.  &  Lef.  231;  see  Lowry  v.  Fulton,  9  Sim.  123. 
(c)  Read  v.  Truelove,  Amb.  41*7. 


278  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

for  the  breach  of  trust,  and  that  on  payment  of  the  penalty  the  trustee 
was  to  be  released.  A  conveyance,  however,  will  not  be  decreed  with- 
out an  allowance  to  the  trustee  of  the  penalty  recovered  upon  the  bond, 
with  interest  at  the  usual  rate.((Z) 

II.  The  office  of  trustee,  being  one  of  personal  confidence,  cannot  be 
delegated.  "  Trustees,"  said  Lord  Langdale,  "  who  take  on  themselves 
the  management  of  property  for  the  benefit  of  others,  have  no  right  to 
shift  their  duty  on  other  persons  ;  and  if  they  do  so  they  remain  subject 
to  responsibility  towards  their  cestuis  que  trust  for  whom  they  have  under- 
taken the  duty.'Ye)  If  a  trustee,  therefore,  confide  the  application  of 
the  trust  fund  to  the  care  of  another,  whether  a  stranger,(/)  or  his  own 
attorney,(^)  or  even  co-trustee  or  co-executor, (A)  *he  will  be  per- 
L         J  sonally  responsible  for  any  loss  that  may  result. 

The  case  of  Balchen  v.  Scott,(i)  though  the  ultimate  result  arrived  at 
is  opposed  to  later  decisions,  the  executor  having  in  fact  proved,  is  no 
exception  to  this  rule ;  for  there  an  executor  had  received  a  bill  of 
exchange  by  the  post  from  a  debtor  to  the  estate,  and  transmitted  it  to 
his  co-executor,  and  it  was  held,  that  by  this  proceeding  the  executor 
had  not  acted  in  the  trust,(Z;)  and  therefore  was  no  more  answerable  for 
the  application  of  the  money  by  the  co-executor,  than  any  stranger  would 
have  been  under  similar  circumstances. 

In  Churchill  v.  Hobson,(/)  an  executor  had  paid  500?.  into  the  hands 
of  his  co-executor,  who  misapplied  it,  and  it  was  ruled  by  the  court  that 
he  was  not  bound  to  make  it  good  ;  but  the  decision  is  universally  con- 
sidered as  having  turned  upon  the  circumstance  that  the  co-executor  was 
a  banker,  and  had  been  trusted  by  the  testator  in  his  lifetime,  besides 
being  made  his  executor  at  his  death. (m)  Lord  Harcourt,  in  his  judg- 
ment, observed,  "  The  co-executor  having  been  the  cashier  with  whom 
the  testator  in  his  lifetime  chose  to  intrust  his  money,  the  executor 
ought  not  to  suffer  for  having  trusted  him  whom  the  testator  himself  in 
his  life  trusted." 

But  trustees  cannot  be  answerable,  if  they  merely  follow  the  testator's 
directions.  Thus  a  testator  recommended  his  executors  to  employ  A. 
(who  had  been  in  the  employment  of  the  testator  himself,)  as  their  clerk 

(d)  Moorecroft  v.  Dowding,  2  P.  W.  314. 

(e)  Turner  v.  Corney,  5  Beav.  517. 

(/)  Adams  v.  Clifton,  1  Russ.  297  ;  Hardwick  v.  Mynd,  1  Anst.  109  ;  case  cited 
by  Sir  J.  Jekyll,  Walker  v.  Symonds,  3  Sw.  79,  note  (a) ;  Char.  Corp.  v.  Sutton, 
2  Atk.  405;  Kilbee  v.  Sneyd,  2  Moll.  199,  per  Sir  A.  Hart;  Douglas  v.  Browne, 
Mont.  93  ;  Ex  parte  Booth,  id.  248;  Turner  v.  Corney,  5  Beav.  515. 

(g)  Chambers  v.  Minchin,  7  Ves.  196,  per  Lord  Eldon;  Ex  parte  Townsend,  1 
Moll.  139  ;  Ghost  v.  Waller,  ^  Beav.  497. 

(h)  Langford  v.  Gascoyne,  11  Ves.  333  ;  Harrison  v.  Graham,  3  Hill's  MSS.  239, 
cited  1  P.  W.  241,  note  (ij),  6th  ed.  ;  Davis  v.  Spurling,  1  R.  &  M.  66,  per  Sir  J. 
Leach  ;  Kilbee  v.  Sneyd,  2  MoU.  200,  212,  per  Sir  A.  Hart;  Lane  v.  Wroth,  and 
Stanley  v.  Darington,  cited  in  Anonymous  case,  Mos.  36 ;  Marriott  v.  Kinnersley, 
Taml.  470 ;  Ex  parte  Winnall,  3  D.  &  C.  22  ;  Anon.  Mos.  35  ;  Clough  v.  Bond,  3 
M.  &  Cr.  497,  per  Lord  Cottenham ;  Dines  v.  Scott,  T.  &  R.  361,  per  Lord  Eldon ; 
Trutch  V.  Lamprell,  20  Beav.  116;  Thompson  v.  Finch,  22  Beav.  316. 

(i)  2  Ves.  jun.  678,  (k)  See  supra,  p.  240. 

(l)  1  P.  W.  241.  ^  ^  ^     ^ 

(to)  See  Harrison  v.  Graham,  3  Hill's  MSS.,  cited  1  P.  W.  241,  note  (y),  6th  ed. ; 
Chambers  v.  Minchin,  7  Ves.  198. 


GENERAL    PROPERTIES    OF    OFFICE    OF    TRUSTEE.     279 

or  agent,  which  they  did,  and  A.  misapplied  part  of  the  assets.  The  ces- 
tuis  que  trust  contended  that  executors  were  answerable  for  the  default 
of  their  servant.  Sir  A.  Hart  said,  "  That  is  the  rule.  It  is  hard  occa- 
sionally, where  the  executor  has  acted  with  good  faith  ;  but  it  is  esta- 
blished, *and  it  is  beneficial  in  general.  The  rule,  however,  is  r^c^Qcf-, 
governed  by  circumstances;  andifii  testator  points  out  an  agent  L  ■"  ""J 
to  be  employed  by  the  executor,  I  think  if  such  employee  received  a 
sum  of  money,  and  immediately  made  default,  the  executor  would  clear 
himself  by  showing  that  the  testator  designated  the  person,  and  that  he 
could  not  by  the  exercise  of  reasonable  diligence  recover  the  money. 
But  the  excuse  of  reasonable  diligence  is  still  required.  The  effect  of  a 
recommendation  is  to  discharge  executors  to  the  extent  of  selecting,  but 
still  the  person  recommended  is  the  agent  of  the  executors,  and  they  are 
bound  to  use  diligence  in  looking  after  him  :  the  question  then  becomes 
one  of  wilful  default,  not  concluding  the  executor  by  the  mere  fact  of 
loss  arising  from  such  employee  :  nor  does  the  diligence  which  is 
required  demand  that  he  should  institute  a  suit  against  the  agent ;  but 
only  that  he  should  have  been  vigilant,  and  have  called  upon  him  to 
account :  he  may  be  able  to  show  some  discreet  and  reasonable  ground 
for  not  having  sued  him.'Yo) 

And  an  executor  cannot  be  answerable  for  having  handed  over  money 
which  he  had  no  legal  right  to  retain.  Thus,  a  testator  appointed  A., 
B.,  and  C.  his  executors,  and  empowered  A.  to  sell  certain  freehold  pre- 
mises, and  directed  the  proceeds  of  the  sale  to  be  applied  and  disposed 
of  in  the  same  manner  as  his  personal  estate.  A.  employed  B.  to  make 
the  sale,  who,  having  disposed  of  the  property,  paid  the  proceeds  to  A., 
by  .whom  the  money  was  misapplied.  It  was  held  that  B.  was  not 
answerable  for  this,  the  money  having  come  to  his  hands,  not  in  the 
character  of  executor,  but  of  agent. (^) 

And  trustees  and  executors  may  justify  their  administration  of  the 
trust  fund  by  the  instrumentality  of  others,  where  there  exists  a  moral 
necessity  for  it.  "  There  are,"  said  Lord  Hardwicke  in  Ex  imrte  Bel- 
chier,  "  two  sorts  of  necessity  :  first,  legal  necessity ;  and,  secondly, 
moral  necessity.  As  to  the  first  a  distinction  prevails.  Where  two 
executors  join  in  *giving  a  discharge  for  money,  and  one  of  r*9nq-i 
them  only  receives  it,  they  are  both  answerable  for  it;  because  L  ""  -i 
there  is  no  necessity  for  both  to  join  in  the  discharge,  the  receipt  of  either 
being  sufficient :  but  if  trustees  join  in  giving  a  discharge,  and  one  only 
receives,  the  other  is  not  answerable,  because  his  joining  in  the  dis- 
charge was  necessary.  3Ioral  necessity  is  from  the  usage  of  mankind, 
if  the  trustee  acts  as  prudently  for  the  trust  as  he  would  have  done  for 
himself,  and  according  to  the  usage  of  business ;  as  if  a  trustee  appoint 
rents  to  be  paid  to  a  banker  at  that  time  in  credit,  but  who  afterwards 
breaks,  the  trustee  is  not  answerable  :  so  in  the  employment  of  stewards 
and  agents ;  for  none  of  these  cases  are  on  account  of  necessity,  but 

(o)  Kilbee  v.  Sneyd,  2  Moll.  199,  200 ;  and  see  Doyle  v.  Blake,  2  Sch.  &  Lef. 
239,  245. 

{p)  Davis  V.  Spurling,  1  R.  &  M.  64;  S.  C.  Taml.  199;  and  see  Crisp  v.  Spran- 
ger,  Nels.  109;  Keane  v.  Robarts,  4  Mad.  332,  see  356,  359. 


280       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

because  the  persons  acted  in  the  usual  method  of  business."(5)  And 
Lord  Loughborough  in  very  similar  terms  observed,  "  If  the  business 
was  transacted  in  the  ordinary  manner,  unless  there  were  some  circum- 
stance to  create  suspicion,  surely  the  allowance  is  fair."(r)  "  Necessity," 
said  Lord  Cottenhara,  "which  includes  the  regular  course  of  business, 
will  exonerate." (s)  And  Lord  Redesdale,  in  the  same  spirit  observed, 
"  An  executor  living  in  London  is  to  pay  debts  in  Suffolk,  and  remits 
money  to  his  co-executor  to  pay  those  debts  :  he  is  considered  to  do  this 
of  necessity  :  he  could  not  transact  business  without  trusting  some  person, 
and  it  would  be  impossible  for  him  to  discharge  his  duty,  if  he  is  made 
responsible  where  he  remitted  money  to  a  person  to  whom  he  would  himself 
have  given  credit,  and  would  in  his  own  business  have  remitted  money 
in  the  same  way.  It  would  be  the  same  were  one  executor  in  India  and 
another  in  England,  the  assets  being  in  India  but  to  be  applied  in  Eng- 
land :  there  the  co-executor  is  appointed  for  the  purpose  of  carrying  on 
such  transaction,  and  the  executor  is  not  responsible  :  for  he  must  remit 
to  somebody,  and  he  cannot  be  wrong  if  he  remits  to  the  person  in  whom 
the  testator  himself  reposed  confidence. "(<) 

r*9Qi"l  *Again,  where  A.  and  B.  were  assignees  of  a  bankrupt,  and 
L  "  -I  A.  signed  the  dividend  cheques  upon  the  bankers  in  favor 
of  the  creditors,  and  delivered  them  to  B.,  who  undertook  to  affix 
his  signature,  and  deliver  them  to  the  creditors,  ■  and  B.  accordingly 
signed  the  cheques,  and  placed  them  in  his  desk,  whence  they  were 
stolen,  and  presented  at  the  bank,  and  paid ;  on  an  application  to  the 
court  to  make  A.  answerable.  Sir  J.  Leach  said,  "  It  is  true  that  assig- 
nees are  trustees  who  have  only  a  joint  and  not  a  separate  authority,  and 
if  by  the  act  of  one  assignee,  out  of  the  course  of  his  duty,  the  trust 
property  is  placed  within  the  single  power  of  the  other,  both  are  liable. 
But  here  it  was  not  to  be  expected  that  the  assignees  were  to  meet  upon 
the  application  of  every  creditor,  for  the  purpose  of  signing  and  deliver- 
ing his  dividend  cheque.  Such  a  course  of  proceeding  would  have  been 
highly  inconvenient  to  the  creditors  themselves.  It  is  not  the  practice  of 
bankers  to  receive  the  dividend  cheques  from  the  assignees,  and  pay  to 
each  creditor  upon  his  application  ;  the  trouble  is  greater  than  they  are 
willing  to  undertake.  Of  necessity,  therefore,  some  single  person  is  to 
be  selected  for  the  distribution  of  these  cheques,  and  it  is  obvious  that 
there  is  greater  security  if  one  of  the  assignees  will  undertake  the  office 
than  if  it  be  entrusted  to  an  agent,  because  there  may  be  cases  in  which 
circumstances  of  convenience  would  not  require  that  the  joint  cheques 
should  be  signed  by  that  assignee  until  the  application  of  the  creditor, 
and  the  time  of  delivering  the  cheques.  Upon  the  whole,  I  am  of  opinion 
that  the  delivery  of  these  cheques  by  A.  to  B.  as  his  co-assignee,  was  an 

(?)  Ex  parte  Belchier,  Amb.  219. 

(r)  Bacon  v.  Bacon,  5  Ves.  335. 

(«)  Clough  V.  Bond,  3  M.  C.  49t. 

(0  Joy  V.  Campbell,  1  Sch.  &  Lef.  341 ;  and  see  Bacon  v.  Bacon,  5  Ves.  331,  and 
compare  Chambers  v.  Minchin,  7  Ves.  193,  and  Langford  v.  Gascoyne,  1 1  Ves.  335  ; 
and  see  Davis  v.  Spurling,  1  R.  &  M.  66  ;  Munch  v.  Cockerell.  5  M.  &  Or.  214. 


GENERAL    PROPERTIES    OF    OFFICE    OF    TRUSTEE.     281 

act  done  in  the  proper  execution  of  his  duty  of  a  trustee,  and  that  he  is 
not  responsible  for  the  subsequent  loss  of  these  cheques.(?() 

But  where  the  assignees  of  a  bankrupt  employed  an  attorney  to  recover 
debts  due  to  the  estate,  and  the  attorney  received  the  money,  and  abscon- 
ded. Sir  A.  Hart  distinguished  the  case  from  Ex  parte  Belchier,  on  the 
ground  that  there  was  no  necessity  for  permitting  the  attorney  to  receive 
one  shilling  of  the  money  recovered  further  than  his  costs.  <'  The 
assignee,"  *he  observed,  ''has  two  modes  of  relieving  himself p^^^^.--, 
from  the  responsibility.  He  may  call  a  meeting  of  the  creditors  L  ""  '  -1 
to  approve  of  an  agent,  or  he  may  petition  the  chancellor,  and  have  an 
agent  approved  of  by  the  master ;  otherwise  he  acts  suo  periculo,  and  to 
this  extent,  that  if  the  attorney  whom  he  employs  to  recover  debts 
receives  the  money  one  day  and  becomes  insolvent  the  next,  the  assignee 
is  liable,  although  there  is  hardly  a  shadow  of  negligence,  much  less  of 
fraud."  And  his  lordship  said  the  same  point  had  been  decided  in  an 
unreported  case  before  LordEldon.(w)  Trustees,  undoubtedly,  must  not 
let  the  money  lie  in  the  hands  of  the  attorney,  but  that  they  must  not 
suffer  it  to  pass  through  his  hands  in  the  ordinary  course  of  business,  in 
the  recovery  of  a  debt  by  action,  was  beyond  any  previous  decision ;  it 
is  probable  that  the  case  before  Lord  Eldon  contained  some  particular 
and  distinguishing  circumstance. 

A  trustee  or  executor  is  not  called  upon  to  take  any  security  from  the 
agent ;  for  to  do  that  upon  every  occasion  would  tend  greatly  to  the  hin- 
drance of  business. (i/j) 

Where  trust  money  is  to  be  transmitted  to  a  distance,  the  trustee  may 
do  it  most  conveniently  and  securely  through  the  medium  of  a  responsi- 
ble bank,  or  he  may  take  bills  drawn  by  a  person  of  undoubted  credit, 
and  payable  at  the  place  whither  the  money  is  to  be  sent.  Thus  in 
Knight  V.  The  Earl  of  Plymouth, (x)  a  receiver,  in  order  to  bring  money 
to  London,  took  bills  which  at  the  time  they  were  obtained  there  was  no 
ground  to  suspect,  but  which,  as  it  afterwards  happened,  were  protested 
in  London,  and  the  money  lost.  Lord  Hardwicke  said,  "  The  method 
the  receiver  took  was  highly  prudent ;  it  was  well  intended,  and  the  only 
way  he  could  take,  unless  he  had  himself  carried  the  money  in  ifpecie,  the 
hazard  of  which  would  have  been  great;  and  if  a  loss  had  then  incurred, 
in  my  opinion  he  would  have  been,  if  not  answerable,  highly  blameable." 

*But  the  money  must  be  paid  in  to  the  account  of  the  trust  r*9QQ-j 
estate,  and  the  bills  must  be  taken  in  favour  of  the  trustee  in  that  L  "'  J 
character,  and  if  he  neglect  these  precautions,  then,  if  the  bank  break, 
or  the  bills  be  dishonoured,  the  trustee  will  be  held  responsible  for  the 
loss  to  the  cesiuis  que  trust. (^t/^ 

The  rule  applied  to  executors  in  a  court  of  law  is  somewhat  different 
from  that  established  in  courts  of  equity.     An  executor  once  become 

(u)  Ex  parte  Griffin,  2  Gl.  &  J.  114  ;  and  see  Wackerbath  v.  Powell,  Buck.  495; 
S.  C.  2  Gl.  &  J.  151  ;  Kilbee  v.  Sneyd,  2  Moll.  186. 

(v)  Ex  parte  Townsend,  1  Moll.  139;  see  Anon,  case,  12  Mod.  5G0. 

(w)  Ex  parte  Belchier,  Amb.  220,  per  Lord  Hardwicke. 

(x)  1  Dick.  120;  S.  C.  3  Atk.  480  ;  recognized  Ex  parte  Belchier,  Amb.  219,  and 
Routh  T.  Howell,  3  Ves.  566;  and  see  Wren  v.  Kirton,  11  Ves.  380,  385. 

(?/)  See  Wren  v.  Kirton,  11  Ves.  380,  381  :  Ma?sey  v.  Banner,  1  J.  &  W.  247. 


282       LEW  IN  ON  THE  LAW  OF  TKUSTS,  ETC. 

responsible  by  actual  receipt  of  any  part  of  tlie  assets,  cannot  at  law  found 
his  discliarge  in  respect  thereof  as  against  a  creditor,  either  by  a  plea  of 
reasonable  confidence  disappointed,  or  a  loss  not  occasioned  by  any 
neglio-ence  or  default ;  as  if  an  executor  transmit  a  sum  to  his  co-executor 
under  circumstances  that  in  equity  would  justify  the  confidence,  a  court 
of  law  would  still  hold  him  responsible  for  any  misapplication  by  the  co- 
executor,  and  could  not  allow  him  to  plead  ^/cne  admin  istravit.{z^ 

If  the  trust  be  of  a  discretionary  character,  not  only  is  the  trustee 
answerable  for  all  the  mischievous  consequences  of  the  delegation,  but 
the  exercise  of  the  discretion  by  the  substitute  will  be  actually  void,  (a) 

Thus  an  advowson  was  vested  in  twenty-five  of  the  principal  inhabi- 
tants of  a  parish  upon  trust  to  elect  and  present  a  proper  preacher,  and, 
some  of  the  trustees  having  deputed  proxies  to  vote  at  the  election, 
Lord  Hardwicke  said,  "  It  is  true  a  trustee  who  has  a  legal  estate  in  him 
may  make  an  attorney  to  do  legal  acts ;  but  here  is  a  personal  trust,  and 
there  is  no  instance  where  a  trustee  is  allowed  to  make  a  proxy  to  vote 
in  a  personal  trust  of  this  kind.  The  trustees  were  themselves  to  judge 
of  the  qualifications  of  the  candidates,  and  could  not  delegate  that  judg- 
ment to  others^  but  ought  to  exercise  it  themselves."  And  his  lordship 
r*'>Q7T  ^^^^7  ^^^^j  ^^  *'^6  election  *had  been  conducted  in  this  manner, 
L  ""     -I  it  could  not  be  supported. (i) 

And  a  discretionary  trust  can  no  more  be  delegated  to  a  co-executor 
or  co-trustee  than  to  a  stranger. (c)  Thus,  where  a  sum  of  money  was 
given  to  three  executors  upon  trust  to  distribute  in  charity  at  their  dis- 
cretion, and  the  executors  assumed  each  the  independent  control  of  one 
third.  Lord  Hardwicke  said,  "  I  am  of  opinion  the  executors  could  not 
divide  the  charity  into  three  parts,  and  each  executor  nominate  a  third 
absolutely,  because  the  determination  of  the  property  of  cveri/  object  was 
left  by  the  testator  to  the  direction  of  all  the  executors."(fZ) 

Of  course,  if  a  trustee  convey  the  estate,  the  mere  transfer  of  the 
estate  will  not  have  the  effect  of  investing  the  grantee  with  the  power. (e) 
And  so  if  a  trustee  devise  the  estate,  the  devisee  cannot  administer  a 
discretionary  trust  unless  the  original  settlement  contemplate  such  an 
event  and  annex  the  powers  to  the  estate  in  the  hands  of  the  devisee. (/) 

It  must  be  noticed  that  the  appointment  of  an  attorney  or  i^roxy  is 
not  in  all  cases  a  delegation  of  the  trust.  When  the  trustee  has  resolved 
in  his  own  mind  in  what  manner  to  exercise  his  discretion,  he  cannot  be 
said  to  delegate  any  part  of  the  confidence  if  he  merely  execute  the  deed 
by  attorney,  or  signify  his  will  by  proxy.  Thus,  in  the  case  before 
cited,(^)  where  the  trust  was  to  elect  and  present  a  proper  clerk  to  a 

(z)  Crosse  v.  Smith,  7  East,  246  ;  and  see  Jones  v.  Lewis,  2  Ves.  241. 

{a)  See  Alexander  v.  Alexander,  2  Ves.  643  ;  Bradford  v.  Belfield,  2  Sim.  264 ; 
Hitch  V.  Leworthy,  2  Hare,  200. 

(6)  Attorney-General  v.  Scott,  1  Ves.  413,  see  417:  Wilson  v.  Dennison,  Amb. 
82;  S.  C.  VB.  P.  G.  296. 

(c)  Crewe  v.  Dicken,  4  Ves.  97.  [d)  Attorney-General  v.  Gleg,  1  Atk.  356, 

(e)  Crewe  v.  Dicken,  4  Ves.  97,  see  100  ;  Dovley  v.  Attorney-General,  2  Eq.  Ca. 
Ab.  194 ;  Bradford  v.  Belfield,  2  Sim.  264 ;  Cole  v.  Wade,  16  Ves.  47,  per  Sir  W. 
Grant. 

(/)  ReBurtt's  Trust,  1  Drewry,  319;  and  see  ante,  pp.  266,267. 

{g)  Attorney-General  V.  Scott,  1  Ves.  413  :  and  see  Ex  parte  Rigby,  19  Ves.  463. 


GENERAL    PROPERTIES    OF    OFFICE    OF    TRUSTEE.     283 

benefice,  Lord  Hardwicke  had  no  doubt  tbat,  so  far  as  related  to  the 
mere  act  of  presentation,  the  trustees,  having  themselves  fixed  upon  the 
object,  might  have  signed  the  presentation  by  proxy;  a  trustee  who  had 
a  legal  estate  might  make  an  attorney  to  do  legal  acts. 

III.  Where  the  administration  of  the  trust  is  vested  in  "^co-  r*29g-] 
trustees,  they  all  form  as  it  were  but  one  collective  trustee,  and  L  J 
therefore  must  execute  the  duties  of  the  ofl&ce  in  their  joint  capacity,  (/i) 
It  is  not  uncommon  to  hear  one  of  several  trustees  called  the  acting 
trustee,  but  the  court  knows  no  such  distinction ;  *  all  who  accept  the 
office  are  acting  trustees.  If  any  one  refuse  to  join,  it  is  not  competent 
for  the  others  to  proceed  without  him,  but  the  administration  of  the 
trust  must  in  that  case  devolve  upon  the  court,  (i) 

Thus,  a  receipt  for  money  must  receive  the  joint  authentication  of  the 
whole  body,  and  not  of  the  majority  merely,  or  it  will  not  be  valid. (^) 
But  where  the  trustees  are  numerous  it  is  common  in  orders  of  the  court 
to  direct  the  payment  of  moneys  to  any  two  or  more  of  them.(Z) 

Again,  if  a  debtor  to  the  trust  become  bankrupt,  all  the  trustees  must 
join  in  the  proof,(m)  unless  under  particular  circumstances  the  court 
make  an  order  for  some  of  the  trustees  to  prove,  and  even  then  the  court 
has  inserted  the  direction  that  the  dividends  should  be  made  payable  to 
all  the  trustees. (?i) 

But  when  there  are  several  trustees,  and  the  trust  is  of  a  public 
character,  the  act  of  the  majority  is  held  to  be  the  act  of  the  whole 
number.(o)  In  Wilkinson  v.  Malin,  Lord  Lyndhurst  observed,  "In 
this  case  there  were  seven  trustees ;  those  seven  met  for  the  purpose  of 
electing  a  schoolmaster;  at  that  meeting  five  of  the  trustees  concurred  in 
the  appointment,  two  dissented,  but  did  nothing  upon  that  dissent.  We 
are  of  opinion  that,  in  a  case  of  this  description,  where  all  the  trustees 
were  assembled  for  the  purpose  of  making  the  election,  and  the  majority 
of  them  so  assembled  concurred  in  the  appointment,  the  act  of  the 
majority  in  that  respect  is  to  be  considered  the  act  of  the  whole  body. 
This  is  a  trust  of  *a  public  nature,  viz.  to  apply  funds  for  the  p2991 
repair  of  the  church  and  other  objects  in  which  the  whole  parish  L  -*  J 
are  interested;  and  we  are  of  opinion  that  where  trustees  are  appointed 
for  the  purpose  of  performing  a  trust  of  such  a  public  and  general  nature, 
the  act  of  the  majority  is  the  act  of  the  whole.  It  was  said  at  the  bar 
that  the  principle  only  applies  to  cases  where  the  trustees  are  appointed 
under  some  public  authority  as  under  an  Act  of  Parliament,  or  some 
public  body;  but  we  are  of  opinion  that  it  is  not  subject  to  that  limita- 
tion. The  objects  of  the  trust  would  be  defeated  if  one  dissenting  trustee 
could  prevent  the  application  of  the  funds  in  the  manner  directed.  Con- 
sidering the  nature  of  the  trusts,  we  are  of  opinion  it  was  the  intention 

(h)  See  Ex  parte  Griffin,  2  Gl.  &  J.  116. 

(i)  Doyley  V.  Sherratt,  2  Eq.  Ca.  Ab.  742,  marginal  note  to  (D). 

h)  See  infra.  (l)  See  Attorney-General  v.  Brickdale,  8  Beav.  223. 

(m)  Ex  parte  Smith,  1  Deac.  391,  per  Sir  T.  Erskine. 

(7i)  Ex  parte  Smith,  1  Deac.  385.  ^  ,       ou 

(o)  Wilkinson  v.  Malin,  2  Tyr.  544 ;  and  see  Attorney-General  v.  Shearman,  2 
Beav.  104  ;  Attorney-General  v.  Cuming,  2  Y.  &  C.  Ch.  Ca.  139;  Youngerv.  Wel- 
ham,  3  S^y.  180. 


284 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


of  the  founder,  and  fairly  to  be  collected  from  the  objects  he  had  in 
view,  that  the  act  of  the  majority  should  bind  the  rest.(p) 

Where  a  numerous  body  are  appointed  trustees  by  the  court,  as  in 
cases  of  charity,  the  court  sometimes  annexes  to  the  order  that  a  part  of 
them  shall  form  a  quorum. 

Where  stock  is  standing  in  the  name  of  several  co-trustees,  any  one 
of  them  may  receive  the  dividends,  though  all  must  join  in  the  sale  of 
the  corpus  ;  and  where  there  are  co-trustees  of  lands,  any  one  of  them 
may  receive  the  rents,  though  all  must  concur  in  a  conveyance. (§') 

IV.  On  the  death  of  one  trustee  the  joint  office  survives. 

It  is  a  well-known  maxim  that  a  hare  autlwrity  committed  to  several 
persons  is  determined  by  the  death  of  any  one;  but,  if  coupled  with  an 
interest,  it  passes  to  the  survivors. (r)  Thus,  the  committees  of  a  lunatic's 
estate  are  regarded  in  the  light  of  mere  bailiffs  without  a  spark  of  interest, 
and  if  one  of  them  die,  the  office  is  immediately  extinguished. (.s)  An 
executorship  *or  administratorship  survives  ;(^)  for  <'if,"  says 
L  ^^^J  Lord  Talbot,  "a  joint  estate  at  law  will  survive,  why  shall  not  a 
joint  administration,  when  they  both  have  a  joint  estate  in  it?"(t<)  So 
a  testamentary  guardianship  vests  in  the  survivors,  for,  as  guardians 
may  bring  actions  and  avow  in  their  own  names,  may  grant  leases  during 
the  minority  of  the  ward,  and  demise  copyholds  even  in  reversion  as 
lords  pro  tempore,  it  is  evident  they  have  an  interest. («)  It  follows  that 
as  co-trustees  have  an  authority  coupled  with  an  interest,  their  office  also 
must  be  impressed  with  the  quality  of  survivorship  :(i/j)  as  if  an  estate 
be  vested  in  two  trustees  upon  trust  to  sell  and  one  of  them  die,  the  other 
may  sell;(x)  and  if  an  advowson  be  conveyed  to  trustees  upon  trust  to 
present  a  proper  clerk,  the  survivors  or  survivor  may  present.^?/)  Other- 
wise, indeed,  the  more  precaution  a  person  took  by  increasing  the  number 
of  the  trustees,  the  greater  would  be  the  chance  of  the  abrupt  determina- 
tion of  the  trust  by  the  death  of  any  one.     Even  where  the  trust  was  to 

{p)  Wilkinson  v.  Malin,  2  Tyr.  572. 

(q)  See  Townley  v.  Sherborne,  Bridg.  35;  Williams  v.  Nixon,  2  Beav.  472; 
Gouldsworth  v.  Knight,  11  M.  &  W.  337. 

(r)  Co.  Lit.  113  a,  181  b;  Butler  v.  Bray,  Dyer,  189  b;  Attorney-General  v. 
Gleg,  1  Atk.  356  ;  S.  C.  Amb.  584 ;  Goulds.  2,  pi.  4  ;  Peyton  v.  Bury,  2  P.  W.  628 ; 
Mansell  v.  Vaughan,  Wilm.  49  ;  Eyre  v.  Countess  of  Shaftesbury,  2  P.  W.  108,  121, 
124. 

(s)  Ex  parte  Lyne,  Rep.  t.  Talb.  143. 

\t)  Adams  v.  Buckland,  2  Vern.  514;  Hudson  v.  Hudson,  Rep.  t.  Talb.  127. 

(m)  Hudson  V.  Hudson,  Rep.  t.  Talb.  129. 

[v)  Eyre  v.  Countess  of  Shaftesbury,  2  P.  W.  102.  But  if  joint  guardians  be 
appointed  by  the  court,  the  ofiice,  on  the  death  of  one,  is  at  an  end;  Bradshaw  v. 
Bradshaw,  1  Russ.  528;  Hall  v.  Jones,  2  Sim.  41. 

{w)  Hudson  V.  Hudson,  Rept.  t.  Talb.  129,  per  Lord  Talbot;  Co.  Lit.  113  a; 
Attorney-General  v.  Glegg,  Amb.  585,  per  Lord  Hardwicke  ;  Gwilliams  v.  Rowell, 
Hard.  204  ;  Billingsley  v.  Mathew,  Toth.  168. 

{x)  See  Co.  Lit.  113  a  ;  Warburton  v.  Sandys,  14  Sim.  622  ;  Watson  v.  Pearson, 
2  Exch.  Rep.  594. 

(y)  See  Attorney-General  v.  Bishop  of  Litchfield,  5  Ves.  825  ;  Attorney-Gene- 
ral V.  Cuming,  2  Y.  &  C.  Ch.  Ca.  139.  If  two  trustees  employ  a  solicitor,  the 
surviving  trustee  may  file  a  bill  against  the  solicitor  for  an  account,  without  mak- 
ing the  representative  of  the  deceased  trustee  a  party ;  Slater  v.  Wheeler,  9  Sim. 

inc.  i-     J  : 


GENERAL    PROPERTIES    OF    OFFICE    OF    TRUSTEE.     285 

raise  the  sum  of  2000?.  out  of  the  testator's  estate  "by  sale  or  otherwise, 
at  the  discretion  of  his  trustees,  who  should  invest  the  same  in  the  names 
of  the  said  trustees  upon  trust,"  &c.,  and  one  of  the  two  trustees  died, 
and  the  survivor  sold ;  yice-Chancellor  Wood  decided  that  the  survivor 
could  make  a  good  title.  "1  find,"  he  said,  "a  clear  estate  in  the 
vendor,  and  a  clear  duty  to  perform.  He  has  executed  his  duty,  and  I 
am  asked  to  say  that  he  has  committed  a  breach  of  trust.  Can  I  do 
that?  He  has  a  duty  imposed  upon  him  to  raise  the  *money :  pgQi-i 
he  has  the  necessary  estate  given  to  him  for  that  purpose.  Is  it  L  J 
to  be  said  that  this  is  a  breach  of  trust  because  the  co-trustee  is  dead  ? 
If  I  were  to  lay  down  such  a  rule  it  would  come  to  this,  that  wherever 
an  estate  was  vested  in  two  or  more  trustees  to  raise  a  sum  by  sale  or 
mortgage,  you  must  come  to  the  court  on  the  death  of  one  of  the 
trustees.  "(2) 

The  survivorship  of  the  trust  will  not  be  defeated  because  the  settle- 
ment contains  a  power  for  restoring  the  original  number  of  trustees  by 
new  appointments  ;(a)  unless  there  be  something  in  the  instrument  that 
specially  manifests  such  an  intention. (6)  Even  in  an  act  of  parliament, 
which  declared  in  very  strong  terms  that  the  survivors  shouId,(c)  and 
they  were  tlierely  required  to  appoint  new  trustees,  the  court  said  the 
proviso  was  analogous  to  the  common  one  in  settlements,  and  expressed 
an  opinion  (for  the  decision  was  upon  another  point,)  that  the  clause  was 
not  imperative,  but  merely  of  a  directory  character.  (cZ) 

The  case  of  Attorney-General  v.  The  Bishop  of  Litchfield,(e)  may  be 
cited  as  touching  upon  this  subject.  A  testator  had  devised  to  eight 
persons  and  their  heirs  the  donation  and  parsonage  of  a  rectory,  and 
"desired  their  care  to  present  from  time  to  time  a  learned,  iminfid 
preacher,  honest  in  life  and  conversation,  whereby  souls  might  be  gained 
to  Christy"  and  directed  that  "the  three  last  survivors  should  make 
choice  of  new  trustees  to  be  added  to  them  successively  to  present." 
The  representative  of  the  last  surviving  trustee  conveyed  to  one  Hodgets 
and  his  heirs ;  Eliza,  the  wife  of  Foley,  was  the  heiress-at-law  of  Hodgets, 
and,  the  advowson  *having  descended  upon  her,  Foley  presented  p3Q2-i 
a  clerk.  An  injunction  was  applied  for  to  stay  the  institution,  L  ^  ""J 
and  Lord  Eldon  said,  "  Upon  what  ground  am  I  to  interfere  to  prevent 
the  bishop  from  instituting  upon  a  presentation  under  the  legal  title  ? 
It  is  said  with  great  foundation  this  trust  ought  to  be  filled  up ;  but,  if 
an  avoidance  happens  before  the  trust  is  filled  up,  the  trustee  executes 
the  duty  by  presenting  a  proper  person.  If  there  is  any  objection  to  the 
clerk  presented  by  him,  as,  if  he  presented  for  emolument  to  himself, 
the  court  should  interfere ;  but  it  would  be  very  inconvenient  if  I  were 

(z)  Lane  v.  Debenham,  IT  Jur.  1005. 

(a)  See  Doe  v.  Godwin,  1  D.  &  R.  259;  Warburton  v.  Sandys,  14  Sim.  622; 
compare  Townsend  v.  Wilson,  1  B.  &  Aid.  608,  with  Hall  v.  Dewes,  Jac.  193;  and 
see  Attorney-General  v.  Floyer,  2  Vern.  '748 ;  Jacob  v.  Lucas,  1  Bcav.  436 ;  At- 
torney-General V.  Cuming,  2  Y.  &  C.  Ch.  Ca.  139. 

(6)  Foley  v.  Wontner,  2  Jac.  &  Walk.  245 ;  and  see  Jacob  v.  Lucas,  1  Beav.  436. 

(c)  As  to  the  force  of  the  words  "  shall  and  may"  in  the  Act  of  Parliament,  see 
Attorney-General  v.  Lock,  3  Atk.  166  ;  Stamper  v.  Millar,  id.  212  ;  Rex  v.  Flock- 
wood,  2  Chit.  Rep.  252. 

[d)  Doe  V.  Godwin,  1  D.  &  R.  259.  (f)  5  Ves.  825. 

February,  1858.— 19 


og(5       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

to  hold  that  there  can  be  no  presentation  till  the  number  is  filled  up, 
when  by  negligence  it  has  happened  that  the  number  is  not  filled  up. 
If  three  trustees  remained,  I  could  not  prevent  their  choice  of  new  trus- 
tees to  be  added  to  them  to  present.  The  filling  up  the  trustees  might 
take  a  considerable  time,  and  a  lapse  might  incur ;  but  I  agree  this  is 
not  a  proper  act  of  Mr.  Foley,  when  the  trust  is  reduced  to  his  wife." 

V.  One  trustee  shall  not  be  li able  for  the  acts  or  defaults  of  Ms  co- 
truHtee,  whether  a  proviso  to  that  effect  be  inserted  in  the  original  settle- 
ment or  not.(/)  This  point  appears  to  have  been  first  clearly  established 
bv  the  decision  of  Townley  v.  Sherborne(5')  in  the  reign  of  Charles  the 
First,  and  is  ushered  in  by  the  reporter  with  no  little  solemnity. 

A.,  B.,  C,  and  D.  were  trustees  of  some  leasehold  premises.  A.  and 
B.  collected  the  rents  during  the  first  year  and  a  half,  and  signed  acquit- 
tances; but  from  that  period  the  rents  were  uniformly  received  by  an 
assign  of  C.  The  liability  of  A.  and  B.  during  the  first  year  and  a  half 
was  undisputed,  but  the  question  was  raised  whether  they  were  not  also 
chargeable  with  the  rents  which  had  accrued  subsequently,  but  had  never 
come  to  their  hands  ?  '<  The  Lord  Keeper  Coventry  (says  the  reporter) 
considered  the  case  to  be  of  great  consequence,  and  thought  not  to  deter- 
r=Ho-»o-i  iQine  the  same  suddenly,  but  to  advise  *thereof,  and  desired  the 
I-  ^  "^J  lords  the  judges  assistant  to  take  the  same  into  their  serious 
(;onsideration,  whereby  some  course  might  be  settled  that  parties  trustees 
might  not  be  too  much  punished,  lest  it  should  dishearten  men  to  take 
any  trust,  which  would  be  inconvenient  on  the  one  side,  nor  that  too 
much  liberty  should  be  given  to  parties  trustees,  lest  they  should  be  em- 
boldened to  break  the  trust  imposed  on  them,  and  so  be  as  much  preju- 
dicial on  the  other  side.  And  the  lord  keeper  and  the  lords  the  judges 
assistant  afterwards  conferring  together,  and  upon  mature  deliberation 
conceiving  the  case  to  be  of  great  importance,  his  lordship  was  pleased 
to  call  unto  him  also  Mr.  Justice  Crook,  Mr.  Justice  Barcley,  and  Mr. 
Justice  Crawley,  for  their  assistance  also  in  the  same,  and  appointed  pre- 
cedents to  he  looked  over  as  well  in  the  Court  of  Chancery  as  in  other 
courts,  if  any  could  be  found  touching  the  point  in  question;  whereupon 
several  precedents  were  produced  before  them,  some  in  the  Court  of 
(Jhancery  and  some  in  the  Court  of  Wards,  where  parties  trustees  were 
chargeable  only  according  to  their  several  and  respective  receipts,  and 
not  one  to  answer  for  the  other,  but  no  precedent  to  the  contrary  was  pro- 
duced to  them.  Whereupon  his  lordship,  after  long  and  mature  delibera- 
tion on  the  case,  and  serious  advice  with  all  the  said  Judges,  did  this  day 
in  open  court  declare  the  resolution  of  his  lordship  and  the  said  judges 
— That  where  lands  or  leases  were  conveyed  to  two  or  more  upon  trust, 
and  one  of  them  receives  all  or  the  most  part  of  the  profits,  and  after 
dyeth  or  decayeth  in  his  estate,  his  co-trustee  shall  not  be  charged  or  be 
compelled  in  the  Court  of  Chancery  to  answer  for  the  receipts  of  him  so 
dying  or  decayed,  unless  some  practice,  fraud,  or  evil  dealing  appear  to 
have  been  in  them  to  prejudice  the  trust;  for,  they  being  by  laio  joint 
tenants  or  tenants  in  common,  every  one  by  law  may  receive  either  all  or 

if)  Leigh  V.  Barry,  3  Atk.  584,  per  Lord  Hardwicke ;  Anon,  case,  12  Mod.  560. 
(^)Bridg.  35. 


GENERAL    PROPERTIES    OF    OFFICE    OF    TRUSTEE.     287 

as  much  of  the  profits  as  he  can  come  hrj.  And  it  being  the  case  of  most  men 
in  these  days  that  their  personal  estates  do  not  suffice  to  pay  their  debts, 
prefer  their  children,  and  perform  their  wills,  they  are  enforced  to  trust 
their  friends  with  some  part  of  their  real  estate  to  make  up  the  same,  either 
by  the  sale  or  the  perception  of  the  profits  thereof;  and  if  such  of  their 
friends  who  carry  themselves  without  fraud  should  be  *charge-  i-*r>n  n 
able  out  of  their  own  estate  for  the  faults  and  deficiencies  of  their  L  ^  J 
co-trustees  who  were  not  nominated  by  them,  few  men  would  undertake 
any  such  ti'ust.  And  if  two  executors  be,  and  one  of  them  wastes  all  or 
any  part  of  the  estate,  the  devastavit  shall  by  law  charge  him  only,  and 
not  the  co-executor.  And  in  that  case  cequitas  sequitur  legem,  there 
being  many  precedents  resolved  in  chancery,  that  one  executor  shall  not 
answer  nor  be  chargeable  for  the  act  or  deftmlt  of  his  companion.  And 
it  is  no  breach  of  trust  to  permit  one  of  the  trustees  to  receive  all  or  the 
most  part  of  the  profits,  it  falling  out  many  times  that  some  of  the  trus- 
tees live  far  from  the  lands  and  are  put  in  trust  out  of  other  respects  than 
to  be  troubled  with  the  receipt  of  the  profits.  And  albeit,  in  all  pre- 
sumption, this  case  had  often  happened,  yet  no  precedent  had  been  pro- 
duced to  his  lordship  or  the  judges,  that  in  any  such  case  the  co-trustee 
had  been  charged  for  the  act  or  default  of  his  companion ;  and  therefore 
it  was  to  be  presumed  that  the  current  and  clear  opinion  had  gone  that 
he  was  not  to  be  charged,  it  having  not  till  of  late  been  brought  into 
question  in  a  case  that  by  all  likelihood  had  often  happened.  But  his 
lordship  and  the  said  judges  did  resolve,  that  if  upon  the  proofs  or  cir- 
cumstances the  court  should  be  satisfied  that  there  had  been  any  dolus 
malus,  or  any  evil  practice,  fraud,  or  ill  intent  in  him  that  permitted  his 
companion  to  receive  the  whole  profits,  he  should  be  charged  though  he 
received  nothing." 

Co-trustees,(/i)  however,  as  was  determined  in  Townley  v.  Sherborne, 
vreve  forme rli/  considered  responsible  for  money  if  they  joined  in  signing 
the  receipt  for  it;  but  in  latter  times  the  rule  has  been  established,  that 
a  trustee  who  joins  in  a  receipt  for  mere  conformity's  sake,  shall  not  be 
answerable  for  a  misapplication  by  the  trustee  who  receives. (?)  Where 
*the  administration  of  the  trust  is  vested  in  co-trustees,  a  receipt  r^onc-. 
for  money  paid  to  the  account  of  the  trust  must  be  authenticated  L  '  J 
by  the  signature  of  all  the  trustees  in  this  their  joint  capacity;  it  would 

{h)  Townley  v.  Sherborne,  Bridg.  35  ;  Spalding  t.  Sbalmer,  1  Vern.  303  ;  Sadler 
T.  Hobbs,  2  B.  C.  C.  114  ;  and  sec  Bradwell  v.  Catchpole,  cited  Walker  v.  S3-nionds, 
3  Sw.  78,  note  (a);  but  said  by  Lord  Cowper,  Fellowes  v.  Mitchell,  2  Yeru.  516, 
to  be  contrary  to  natural  justice. 

(i)  Brice  v.  Stokes,  11  Ves.  324,  per  Lord  Eldon;  Harden  v.  Parsons,  1  Ed.  147, 
per  Lord  Northington;  Westley  v.  Clarke,  1  Ed.  359,  per  eundcm ;  Heaton  v.  Mar- 
riot,  cited  Aplyn  v.  Brewer,  Pr.  Ch.  173;  Ex  parte  Belchier,  Amb.  219,  per  Lord 
Hardwicke  ;  Leigh  v.  Barry,  3  Atk.  584,  per  eundem  ;  Fellows  v.  Mitchell,  1  P.  W. 
81 ;  Gregory  v.  Gregory,  2  Y.  &  C.  316,  per  Baron  Alderson  ;  Sadler  v.  Hobbs,  2 
B.  C.  C.  117,  per  Lord  Thurlow  ;  Chambers  v.  Minchin,  7  Yes.  198,  per  Lord  Eldon  ; 
Lord  Shipbrook  t.  Lord  Iliuchinbrook,  16  Yes.  479,  per  eundem;  Harrison  v. 
Graham,  3  Hiirs  MSS.  239,  per  Lord  Hardwicke,  cited  1  P.  W.  241,  6th  ed.  note  (ij) ; 
Carsey  v.  Barsham,  cited  Joy  v.  Campbell,  1  Sch.  &  Lef.  344,  per  eundcm ;  Anon, 
case,  Mose.  35  ;  Ex  parte  Wackerbath,  2  G.  &  J.  151 ;  Webb  v.  Ledsam,  1  Kay  & 
Johns.  388,  per  Y.  C.  Wood. 


288       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

be  tyranny,  therefore,  to  punish  a  trustee  for  an  act  which  the  very  nature 
of  his  office  will  not  permit  him  to  decline. 

But  it  lies  upon  the  trustee  who  joins  in  the  receipt  for  mere  conform- 
ity, to  prove  that  his  co-trustee  was  the  person  by  whom  the  money  was 
actually  received.  In  the  absence  of  all  evidence,  the  effect  of  a  joint 
receipt  is  to  charge  each  of  the  trustees  in  solido  ;(^-)  as  if  a  mortgage  be 
devised  to  three  trustees,  and  the  mortgagor  with  his  witness  meets  them 
to  pay  it  off,  and  the  money  is  laid  on  the  table,  and  the  mortgagor  having 
obtained  a  reconveyance  and  receipt  for  his  money,  withdraws,  each  of  the 
trustees  in  this  case  will  be  answerable  for  the  whole. (^  A  joint  receipt  at 
law  is  conchisive  evidence  that  the  money  came  to  the  hands  of  both,  but  in 
equity,  which  rejects  estoppels  and  pursues  truth,  the  court  will  decree 
according  to  the  justice  and  verity  of  the  fact.(wt)  "Where,"  said  Lord 
Cowper,  "  it  cannot  be  distinguished  how  much  was  received  by  one 
trustee  and  how  much  by  the  other,  it  is  like  throwing  corn  or  money 
into  another  man's  heap,  where  there  is  no  reason  that  he  who  made  this 
difficulty  should  have  the  whole ;  on  the  contrary,  because  it  cannot  be 
distinguished  he  shall  have  no  part."(?i) 

_„ „  Of  course  a  trustee  will  not  be  exempt  from  liability  if  he 
L  J  *sign  a  receipt  where  the  purposes  of  the  trust  do  not  require  the 
money  to  be  raised  ;  for  there  can  be  no  legal  necessity  for  his  joining 
when  the  money  itself  ought  never  to  have  been  called  for.  Thus  in 
Hanbury  v.  Kirkland,(o)  Kaye,  one  of  three  trustees  of  a  marriage  settle- 
ment with  a  power  of  varying  the  securities,  applied  to  his  co-trustees  to 
sign  a  warrant  of  attorney  for  sale  of  the  stock,  on  the  ground  that  he 
had  an  opportunity  of  investing  the  trust  fund  upon  good  landed  secu- 
rity at  five  per  cent,  interest.  The  co-trustees  signed  the  warrant  of 
attorney,  and  Kaye  sold  out  the  stock  and  misapplied  the  proceeds.  The 
following  year  one  of  the  co-trustees  wrote  to  Kaye  to  inquire  if  he  had 
procured  an  eligible  mortgage,  when  Kaye  replied,  he  had  failed  in 
obtaining  the  mortgage  he  had  originally  contemplated,  but  he  was  in 
hopes  of  investing  the  fund  on  another  security  equally  desirable.  Two 
years  after,  Kaye  absconded,  and  the  money  was  lost.  It  was  held  the 
co-trustees  were  responsible,  and  principally  on  the  ground  that,  "  it  being 
their  duty  to  inquire  what  was  the  security  and  who  was  the  mortgagor, 
they  had  executed  the  power  of  attorney  without  exercising  a  single  act 
of  discretion,  relying  entirely  upon  the  representation  made  to  them  by 
Kaye." 

And  though  a  trustee  joining  in  a  receipt  may  be  safe  in  merely  per- 
mitting his  co-trustee  to  be  the  receiver  in  the  first  instance,  yet  he  will 
not  be  justified  in  allowing  the  money  to  remain  in  his  hands  for  a  longer 
period  than  the  circumstances  of  the  case  may  reasonably  require. (jo) 

{k)  Brice  v.  Stokes,  11  Yes.  234,  per  Lord  Eldon;  Scurfield  v.  Howes,  3  B.  C. 
C.  95,  per  Lord  Thurlow. 

{I)  Westley  v.  Clarke,  1  Ed.  359,  per  Lord  Henley. 

(to)  Harden  v.  Parsons,  1  Ed.  14*7.  per  eundem. 

(n)  Fellows  v.  Mitchell,  1  P.  W.  83. 

(o)  3  Sim.  265,  and  see  Marriott  v.  Kinnersley,  TamL  470;  Broadhurst  v. 
Balguy,  1  Y.  &  C.  Ch.  Ca.  16  ;  Rowland  v.  Witherden,  3  Mac.  &  Gord.  568. 

[p)  Bone  V.  Cook,  M'Clel.  168  ;  Gregory  v.  Gregory,  2  Y.  &  C.  313 ;  Lincoln  v. 


GENERAL    PROPERTIES    OF    OFFICE    OF    TRUSTEE.     289 

Thus,  in  Brice  v.  Stokes,(5)  the  leading  case  upon  this  subject,  Moor- 
ing and  Fielder,  two  trustees  with  a  power  of  sale,  conveyed  the  estate  in 
1784  to  a  purchaser,  and  both  signed  the  receipt,  but  Fielder  alone 
actually  received.  In  ITO-i  Fielder  died  insolvent  without  having  ac- 
counted for  the  money  *paid  to  him,  and  it  was  proved  in  evi-  r*3Q-T-| 
dence  that  Mooring  was  cognisant  of  the  niisemployment  of  the  ■-  J 
fund,  though  he  took  no  active  measures  for  recovering  it  out  of  Fielder's 
hands.  Lord  Eldon  said,  "  Though  a  trustee  is  safe  if  he  does  no  more  than 
authorise  the  receipt  and  retainer  of  the  money  so  far  as  the  act  is  within 
the  due  execution  of  the  trust,  yet  if  it  is  proved  that  a  trustee,  under  a  duty 
to  say  his  co-trustee  shall  not  retain  the  money  beyond  the  time  during 
which  the  transaction  requires  retainer,  admits  that,  with  his  knowledge, 
and  therefore  with  his  consent,  the  co-trustee  has  not  laid  it  out  accord- 
ing to  the  trust,  but  has  kept  it  or  lent  it  in  opposition  to  the  trust,  and 
the  other  trustee  permits  that  for  ten  years  together,  the  question  then 
turns  upon  this,  not  whether  the  receipt  of  the  money  was  right,  but 
whether  the  use  of  it  subsequent  to  that  receipt  was  right,  after  the 
knowledge  of  the  trustee  that  it  had  got  into  a  course  of  abuse.  As  soon 
as  a  trustee  is  fixed  with  knowledge  that  his  co-trustee  is  misapplying 
the  money,  a  duty  is  imposed  upon  him  to  bring  it  back  into  the  joint 
custody  of  those  who  ought  to  take  better  care  of  it."  The  conclusion 
was  that  Mooring  was  to  be  made  answerable. 

Walker  v.  Symonds(r)  involved  great  particularity  of  circumstances ; 
but.  Lord  Eldon  having  described  it  as  a  case  of  great  importance  to 
trustees  in  general,(s)  it  may  be  useful  to  present  it  to  the  reader  so  far 
as  it  bears  upon  the  present  subject. 

A  sum  of  money  secured  by  mortgage  had  been  asssigned  to  Donny- 
thorne,  Griffith,  and  Symonds,  upon  certain  trusts.  On  the  12th  of 
January,  1791,  the  mortgage  was  paid  ofi"  and  the  estate  re-conveyed, 
and  a  joint  receipt  signed,  and  the  money,  with  the  approbation  of  the 
co-trustees,  was  put  into  the  hands  of  Donnythorne.  The  money  was 
shortly  afterwards  invested  by  Donnythorne,  with  the  sanction  of  his  co- 
trustees, in  bills  or  notes  of  the  East  India  Company  payable  at  the  end 
of  two  years.  In  1795  the  bills  were  paid  off  by  the  company,  and  the 
money  received  by  Donnythorne.  Intelligence  to  that  effect  having  been 
transmitted  to  the  co-trustees,  Symonds  *the  same  year  wrote  to  r+gQg-i 
Donnythorne,  requesting  him  to  invest  it  in  the  public  funds  in  L  -• 
the  joint  names  of  the  trustees.  Donnythorne  begged  that  the  money 
might  remain  in  his  hands,  and  proposed  to  secure  the  repayment  of  it 
by  a  mortgage  from  himself  and  his  son  of  their  settled  estates  in  Corn- 
wall, and  until  the  mortgage  could  be  prepared,  to  secure  it  by  their 
joint  bond.  The  co-trustees,  conceiving  the  security  would  be  ample, 
expressed  their  consent,  and  the  joint  bond  was  accordingly  executed. 
Donnythorne  not  having  sent  the  mortgage  as  he  promised,  Symonds  made 
several  applications  to  him  upon  the  subject,  earnestly  desiring  him 

Wright,  4  Beav.  427.     This  doctrine  appears  to  have  been  very  little  regarv-led  in 
the  time  of  Lord  Talbot.     See  Attorney-General  v.  Kandall,  21  Vin.  Ab.  534. 

(q)   11  Ves.  319. 

(r)  3  Sw.  1.  (*)  Id.  T4. 


290       LEW  IN  ON  THE  LAW  OF  TRUSTS,  ETC. 

either  to  invest  the  money  in  the  funds,  or  to  give  them  landed  security. 
In  September,  1796,  Donnythorne  died  insolvent,  and  without  having 
executed  the  mortgage.  Sir  W.  Grant  observed,  "  The  money  in  1791 
was  paid  in  without  any  act  of  the  trustees  :  they  were  obliged  to  receive 
it :  so  far  they  were  blameless.  It  came  to  Donnythorne's  hands,  and 
the  trustees  were  not  to  blame  in  letting  it  come  to  his  hands ;  but  they 
might  have  afterwards  made  themselves  responsible  by  merely  not  doing 
what  was  incumbent  on  them  ;  by  permitting  the  money  to  remain  a 
considerable  time  in  the  hands  of  their  co-trustee  they  might  without 
any  positive  act  on  their  part,  have  made  themselves  liable.  That  will 
depend  on  the  degree  and  extent  of  their  laches  in  suffering  the  money 
to  remain  in  the  hands  of  Donnythorne.  The  trustees  being  authorised 
to  put  the  money  out  on  mortgage,  it  would  be  rather  hard  to  say  that 
they  were  guilty  of  laches  by  giving  Donnythorne  a  little  time  to  find  a 
mortgage,  taking  his  bond  in  the  meantime.  What  passed  in  the  interval 
between  to  the  death  of  Donnythorne  does  not  appear.  If  it  were  neces- 
sary to  decide  the  point,  an  inquiry  before  the  master  must  be  direet- 
ed.'VA  Sir  W.  Grant  dismissed  the  bill,  which  was  one  to  set  aside  (as 
having  been  fraudulently  obtained)  a  compromise  of  the  alleged  breach 
of  trust,  but  did  so  on  grounds  foreign  to  the  subject  under  discussion; 
Lord  Eldon,  however,  before  whom  the  cause  was  brought  upon  appeal, 
reversed  Sir  W.  Grant's  decree,  and  directed  an  inquiry  by  the  master 
r*^nQi  ^^  ^^  *^^  conduct  *of  the  trustees  from  January,  1791,  when  the 
L  J  mortgage  was  paid  off,  to  1796,  the  time  of  Donnythorne's  death. 
It  then  appeared  by  the  master's  report  made  in  pursuance  of  the  order, 
that  the  money  had  been  invested  by  Donnythorne,  soon  after  he  had 
received  it,  in  East  India  bills  payahle  to  himself;  that  the  money  due 
on  the  bills  had  been  discharged  in  1793,  and  the  money  paid  to  Donny- 
thorne ;  that  the  co-trustees  had  made  no  inquiry  about  the  trust  fund 
from  January,  1791,  till  May,  1795,  which  was  the  time  when  Symonds 
wrote  the  letter  and  made  the  applications  already  stated.  On  the  hear- 
ing of  the  cause  upon  further  directions.  Lord  Eldon  said,  "  The  cause 
comes  back  with  a  report  stating  a  clear  breach  of  trust  in  leaving  the 
trust  fund  in  the  situation  represented  from  1791  to  1793,  and  from 
1793  to  1795.  The  money  was  laid  out  in  1791  with  the  consent  of  the 
trustees  on  India  bills  payable  to  Donnythorne,  a  palpable  breach  of 
trust  by  placing  the  fund  under  his  control,  secured  by  little  more  than 
a  promissory  note  payable  to  himself.  It  was  probable  that  in  1793  Don- 
nythorne would  be  paid  the  money  due  on  the  bills,  and  it  would  be 
lodged  in  his  hands  ;  and  although  the  court  will  proceed  as  favourably 
as  it  can  to  trustees  who  have  laid  out  the  money  on  a  security  from 
which  they  cannot  with  activity  recover  it,  yet  no  judge  can  say  they 
are  not  guilty  of  a  breach  of  trust,  if  they  suffer  it  to  lie  out  on  such  a 
security  during  so  long  a  tirae.(M)  The  trustees  were  guilty  of  a  breach 
of  trust  in  permitting  the  money  to  remain  on  bills  payable  to  Donny- 
thorne alone,  and  in  leaving  the  state  of  the  funds  unascertained  for  five 
years. (i))     I  agree  with  the  master  of  the  rolls  that  inquiry  might,  on  the 

(0  3  Sw.  41. 

(w)  3  Sw.  65.  (,,)  lb.  67. 


GENERAL    PROPERTIES    OF    OFFICE    OF    TRUSTEE.      291 

principles  of  tliis  court,  have  discharged  the  trustees  in  given  circum- 
stances from  a  breach  of  trust.  If  without  previous  participation,  they, 
in  June,  1795,  had  found  that,  being  themselves  implicated  in  no  breach 
of  trust,  they  had  a  co-trustee  who  had  been  guilty  of  a  shameful  violation 
of  his  duty,  and  immediately  exerted  themselves  to  obtain  from  him  a  mort- 
gage, which  was  their  object  at  that  time,  and  used  their  utmost  eiforts 
instead  of  filing  a  bill  in  this  court,  which  perhaps  might  have  destroyed 
his  means  of  giving  security,  *I  should  have  hesitated  long  before  rHcoiQl 
I  charged  then,  if  inquiry  had  satisfied  me  that  for  a  simple  con-  L  J 
tract  debt  due  to  them  they  had  taken  a  bond  and  a  mortgage  instead  of 
instituting  a  suit,  with  the  rational  hope  that  by  means  of  the  bond  aud 
the  mortgage  they  should  obtain  payment  from  their  co-trustee."(?o)  The 
result  of  his  lordship's  judgment  was,  that,  under  the  circumstances  dis- 
closed by  the  master's  report,  the  trustees  were  clearly  to  be  held  respon- 
sible for  the  loss  of  the  money. 

Co-executors  also,  like  co-trustees,  are  generally  answerable  each  for 
his  own  acts  only  and  not  for  the  acts  of  any  co-executor. (.r)  But  in 
respect  of  receipts,  the  case  of  co-exectttors  is  materially  different  from 
that  of  co-trustees.  An  executor  has,  independently  of  his  co-executor, 
a  full  and  absolute  control  over  the  personal  assets  of  the  testator.  If 
an  executor  join  with  a  co-executor  in  a  receipt,  he  does  a  wanton  and 
unnecessary  act;  he  interferes  when  the  nature  of  the  ofiice  lays  upon 
him  no  such  obligation,  and  therefore  it  was  a  rule  very  early  established, 
that,  if  executors  joined  in  receipts,  they  should  be  answerable,  each  in 
solido,  for  the  amount  of  the  money  received. (?/) 

In  Westley  v.  Clarke(^;)  Lord  Northington  expressed  an  opinion  that 
aimed  at  breaking  down  the  rule ;  and  by  his  decision  of  that  case  he 
succeeded  in  establishing  a  qualification  of  it. 

Thompson,  one  of  three  co-executors,  had  called  in  a  sum  of  money 
secured  by  a  mortgage  for  a  term  of  years,  and  received  *the  r*oi  i-i 
amount,  and  afterwards,  but  the  same  day,  sent  round  his  clerk  L  J 
to  his  co-executors  with  a  particular  request  that  they  would  execute  thi^ 
assignment  and  sign  the  receipt,  which  they  accordingly  did.  Thompson 
afterwards  became  bankrupt,  and  the  money  was  lost,  and  thereupon  a 
bill  was  filed  to  charge  the  co-executors.  Lord  Northington  said,  "The 
rule  that  executors  joining  in  a  receipt  are  all  liable  amounts  to  no  more 
than  this,  that  a  joint  receipt  given  by  executors  is  a  stronger  proof  that 

(w)  3  Sw.  71. 

(x)  Hargthorpe  v.  Milforth,  Cro.  El.  318;  Anon.  Dyer,  210  a;  Wentw.  Off.  Ex. 
306,  14  Edn. ;  Williams  v.  Nixon,  2  Beav.  472. 

{y)  Aplyn  v.  Brewer,  Pr.  Ch.  173;  Murrell  v.  Cox,  2  Vern.  5G0 ;  Ex  parte 
Belchier,  Amb.  219,  per  Lord  Hardwicke;  Leigh  v.  Barry,  3  Atk.  584,  per  eunde-u  ; 
Harrison  v.  Graham,  3  Hill's  MSS.  239,  per  eundem,  cited  1  P.  W.  241,  6th  eu. 
note  {y)  ;  Darwell  v.  Darwell,  2  Eq.  Ca.  Ab.  456;  Gregory  v.  Gregory,  2  Y.  &  C. 
316,  per  Baron  Alderson. 

(z)  1  Ed.  357  ;  S.  C.  1  Dick.  329  ;  and  see  Harden  v.  Parsons,  1  Ed.  147,  148. 
Yet  in  Churchill  v.  Hobson,  1  P.  W.  241,  note  (1)  by  Mr.  Cox,  his  lordship  is 
reported  to  have  said,  according  to  a  note  of  the  case  by  Sir  L.  Kenyon,  that  in 
Westley  v.  Clarke  he  should  have  thought  the  co-executors  liable  if  they  hadbfon 
present  at  the  time  the  money  was  paid ;  and  Lord  Redesdale,  in  Doyle  v.  Blake. 
2  Sch.  &  Lef.  242,  243,  seemed  to  think  that  Lord  Northington  had  no  intention 
of  breaking  down,  but  only  of  qualifying  the  rule. 


292 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


they  actually  joined  in  a  receipt,  because  generally  tliey  have  no  occasion 
to  join  for  conformity.  But,  if  it  appears  plainly  that  one  executor  only 
received  and  discharged  the  estate  indebted  and  assigned  the  security, 
and  the  others  joined  afterwards  without  any  reason,  and  without  being 
in  a  capacity  to  control  the  act  of  their  co-executor  either  before  or  after 
that  act  was  done,  what  grounds  has  any  court  in  conscience  to  charge 
him  ?  Equity  arises  out  of  a  modification  of  acts,  where  a  very  minute 
circumstance  may  make  a  case  equitable  or  iniquitous :  and  though  former 
authorities  may  and  ought  to  bind  the  determination  of  subsequent  cases 
with  respect  to  rights,  as  in  the  right  of  curtesy  or  dower,  yet  there  can 
be  no  rule  for  the  future  determination  of  this  court  concerning  the  acts 
of  men.  The  only  act  that  affected  the  assets  was  the  first  that  dis- 
charged the  debt,  and,  according  to  the  sense  of  the  bar,  transferred  the 
le"-al  estate  of  the  lands.  Then  that  the  co-executors  are  not  to  answer 
for,  and  the  second  is  nugatory."  His  lordship  was  therefore  of  opinion 
that  the  co-executors  were  not  liable  for  the  misapplication  by  the  co- 
executor. 

The  doctrine  propounded  in  this  case,  that  the  joint  receipt  of  co- 
executors  is  merely  a  stronger  proof  of  the  actual  receipt  than  in  the 
instance  of  co-trustees,  and  that  an  executor  as  well  as  a  trustee  may 
rebut  the  presumption  by  positive  evidence,  has  since  been  repeatedly 
contradicted  both  by  dicta  and  deGisions.(a)  The  simple  point  deter- 
r*oi9-i  ™i^^^j  "^^2-  *^^^  ^°  *executor  who  signs  shall  not  be  answerable 
L  ""  ""-1  when  the  act  of  signature  is  nugatory,  may  be  considered  as  now 
settled. 

Lord  Thurlow,  indeed,  is  reported  to  have  questioned  the  decision  iu 
Westleyv.  Clarke :(7>)  but  Lord  Alvanley  said,  "he  must  enter  his 
dissent  against  the  rule,  that  executors  joining  in  a  receipt  were  both 
liable,  for  he  did  not  hold  that  an  executor  could  not  m  aiii/  case  be  dis- 
charged from  a  receipt  given  for  conformity  :  he  did  not  find  fault,  for 
instance,  with  the  case  of  Westley  v.  Clarke."(c)  And,  again,  he  said, 
"he  perfectly  concurred  in  the  decision  of  that  case;  and  the  joining  in 
a  receipt,  though  not  perhaps  absolutely  necessary,  he  would  not  con- 
sider conclusive.'" {cl)  Lord  Eldon,  in  evident  allusion  to  the  case  of 
Westley  v.  Clarke,  admitted  the  old  rule  had  haen  pared  down,  at  the 
same  time  expressing  his  opinion  that  the  notion  upon  which  the  later 
cases  had  proceeded,  viz.  that  the  old  rule  had  a  tendency  to  discourage 
executors  from  acting,  was  very  ill-founded.  A  plain  general  rule,  he 
thought,  which  once  laid  down  was  easily  understood  and  might  be 
generally  known,  was  much  more  inviting  to  executors  than  a  rule 
referring  every  thing  to  the  particular  circumstances. (e) 

(a)  Scurfield  v.  Howes,  3  B.  C.  C.  90 ;  Sadler  v.  Hobbs,  2  B.  C.  C.  114;  Lang- 
ford  V.  Gascoyne,  11  Ves.  333  ;  and  see  Doyle  v.  Blake,  2  Sch.  &  Lef.  243  ;  Joy  v. 
Campbell,  1  Sch.  &  Lef.  341  ;  Chambers  v.  Minchin,  7  Ves.  198  ;  Brice  v.  Stokes, 
11  Ves.  325;  Shipbrook  v.  Hinchinbrook,  16  Ves.  479;  Walker  v.  Symonds,  3 
Sw.  64;  Re  Fryer,  3  Jur.  N.  S.  485  ;  decided  by  Vice-Chancellor  Wood;  which 
supports  Lord  Northington's  view. 

(i)  Sadler  v.  Hobbs,  2  B.  C.  C.  117.  (c)  Scurfield  v.  Howes,  3  B.  C.  C.  94. 

{d)  Hovey  v.  Blakeman,  4  Ves.  608. 

(«)  See  Chambers  v.  Minchin,  7  Ves.  198;  Brice  v.  Stokes,  11  Ves.  325;  Ship- 
brook  V.  Hinchinbrook,  16  Ves.  479,  Walker  v.  Symonds,  3  Sw.  64. 


GENERAL    PROPERTIES    OF    OFFICE    OF    TRUSTEE.     293 

The  present  doctrine  of  the  court  was  thus  enunciated  by  Lord 
Eldon: — ''Though  one  executor  has  joined  in  a  receipt,  yet  whether  he 
is  liable  shall  depend  upon  his  acting.  The  former  was  a  simple  rule 
that  Johmtg  should  be  considered  as  acting,  but  now  Joining  alone  does 
not  impose  responsibility/'(/)  The  same  rule  was  laid  down  by  Lord 
Kedesdale,  and  in  his  usual  clear  and  forcible  language.  "  The  dis- 
tinction," he  said,  ''  with  respect  to  mere  signing  appears  to  be  this ; 
that  if  a  receipt  be  given  for  the  purpose  of  form,  then  the  signing  will 
not  charge  the  person  not  receiving;  but  if  it  be  given  under  circum- 
stances purporting  that  the  money,  though  not  actually  received  by  both 
executors,  was  under  the  ^control  of  both,  such  receipt  shall  r^g^g-i 
charge ;  and  the  true  question  in  all  these  cases  seems  to  have  L  J 
been,  whether  the  money  was  under  the  control  of  both  executors  :  if  it 
was  so  considered  by  the  person  paying  the  money,  then  the  joining  in 
the  receipt  by  the  person  who  did  not  actually  receive  amounted  to  a 
direction  to  pay  to  his  co-executor  (for  it  could  have  no  other  meaning,) 
and  he  became  responsible  for  the  money,  just  as  if  he  had  actually 
received  it.(^g)  Thus,  where  two  executors  join  in  a  receipt  to  a  debtor, 
though  the  receipt  of  one  would  have  been  a  discharge  to  the  debtor, 
yet,  they  joining  in  the  discharge,  the  debtor  is  taken  to  have  paid  them 
to  them  both.  His  requiring  the  discharge  of  the  executor  who  has  not 
received  the  money  amounts  to  saying,  "  I  make  this  payment  to  you 
both,  and  not  to  him  only  who  actually  receives  the  money."(/i) 

In  Churchill  v.  Hobson,(i)  Lord  Harcourt  took  a  distinction  between 
creditors  and  legatees  ;(/c)  that  in  the  case  of  creditors,  who  were 
entitled  to  the  utmost  benefit  of  the  law,  the  joining  of  the  executors  in 
the  receipt  might  make  each  liable  for  the  whole ;  but  when  legatees 
were  concerned,  who  had  no  remedy  for  their  demand  except  in  equity, 
it  was  altogether  unequitable,  that  one  executor  should  answer  for  the 
receipt  of  the  other.  But  this  refinement  of  Lord  Harcourt  has  by  sub- 
sequent authorities  been  clearly  overruled. (7)  The  comment  of  Lord 
Northington,  though  it  may  not  express  faithfully  the  distinction  intended 
by  Lord  Harcourt,  is  too  ingenious  not  to  be  here  mentioned.  "  At 
law,"  he  said,  "  a  joint  receipt  is  conclusive  evidence  that  the  money 
came  to  them  both,  and  is  not  to  be  contradicted ;  but  a  court  of  equity, 
which  rejects  estoppels  and  pursues  truth,  will  decree  according  to  the 
justice  and  verity  of  the  fact ;  and  what  is  said  by  Lord  Harcourt  as  to 
the  distinction  between  a  receipt  of  this  kind  as  to  a  legatee  and  a 
creditor  seems  to  have  this  meaning — that  a  creditor  may  at  law  charge 
both  executors  on  a  joint  receipt,  but  *that  in  a  court  of  equity,  r^gj^^-i 
where  alone  legacies  are  received,  such  receipt  should  not  be  L 
conclusive,  but  the  court  will  see  who  actually  received,  and  charge 
that  person  accordingly."  (?)i) 

(/)  Walker  v.  Symonds,  3  Sw.  64. 
(ff)  Joy  V.  Campbell,  1  Sch.  &  Lef.  341. 

(h)  Doyle  v.  Blake,  2  Sch.  &  Lef.  242.  (0   1  ?•  ^-  241. 

(k)  See  Gibbs  v.  Herrin?,  Pr.  Ch.  49. 

(/)  See  Sadler  v.  Hobbs,  2  B.  C.  C.  117 ;  and  see  Doyle  v.  Blake,  2  Sch.  &  Lef. 
239. 

(m)  Harden  v.  Parsons,  1  Ed.  147. 


294  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

Lord  Redesdale  has  rightly  observed,  that  '<■  there  may  be  a  case, 
where  executors  would  be  charged  as  against  creditors,  though  not  as 
against  legatees,  for  legatees  are  bound  by  the  terms  of  the  will,  creditors 
are  not;  and  therefore,  if  the  testator  direct  the  executors  to  collect  the 
assets,  and  pay  the  proceeds  into  the  hands  of  A.,  which  is  done  accord- 
ingly, and  A.  fails,  if  a  creditor  remain  unpaid,  he  may  charge  the 
executors;  but,  as  regards  a  legatee,  the  executors  may  justify  them- 
selves by  the  directions  of  the  will."(«) 

On  the  same  principle  that  an  executor  is  liable  for  joining  in  a 
receipt  he  is  responsible  for  any  act  by  which  he  reduces  any  part  of  the 
testator's  property  into  the  possession  of  his  co-executor,(o)  as  if  an 
executor  join  in  drawing,(p)  or  indorsing,(2')  a  bill,  or  invest  a  sum  in 
the  joint  names  of  himself  and  his  co-executors,  so  that  on  his  own  death 
the  entire  control  of  the  fund  devolves  on  the  co-executor.(r)  So  it  is 
laid  down  in  an  old  case,  that  "  if  by  agreement  between  the  executors 
one  be  to  receive  and  intermeddle  with  such  a  part  of  the  estate,  and 
the  other  with  such  a  part,  each  of  them  will  be  chargeaMe  for  the  whole, 
because  the  receipts  of  each  are  pursuant  to  the  agreement  made  betwixt 
both."(s)  So  an  executor  is  answerable,  if  he  give  a  power  of  attorney, 
or  other  authority,  to  his  co-executor  to  collect  the  assets. ((") 

But  under  particular  circumstances  the  joining  of  an  executor  is  as 
absolutely  necessary  as  the  joining  of  a  trustee,  and  of  course  in  such 
cases  executors  and  trustees  are  put  upon  the  same  footing  in  respect  of 
liability. 

r*m  W\  *'^^i^^j  ^^  ^  bi^^  0^  exchange  be  remitted  two  agents  payable 
L  -J  to  them  personally,  who  on  the  death  of  their  principal  are  made 
his  executors,  the  mere  indorsement  of  one,  after  they  are  executors,  in 
order  to  enable  the  other  to  receive  the  money,  will  not  operate  to  charge 
him  who  does  not  actually  receive,  (w) 

And  so  where  the  joining  of  both  executors  is  necessary  to  the  trans- 
fer of  stock.(;;) 

But  even  where  the  joining  of  an  executor  is  absolutely  indispensable, 
it  is  still  incumbent  on  the  executor  to  see  that  the  act  in  which  he  joins 
is  perfectly  consistent  with  the  due  execution  of  the  trust.  (%') 

And  the  executor  will  not  be  excused  if  he  rely  on  the  mere  repre- 

(n)  Doyle  v.  Blake,  2  Sch.  &  Lef.  239,  245. 

(o)  Townsend  v.  Barber,  1  Dick.  356;  Moses  v.  Levi,  3  Y.  &  C.  359. 

\p)  Sadler  v.  Hobbs,  2  B.  C.  C.  114. 

[q)  Hovej  v.  Blakeman,  4  Ves.  608,  per  Lord  Alvanley. 

(r)  Clough  V.  Dixon,  8  Sim.  594;  3  M.  &  C.  490. 

(s)  Gill  V.  Attorney-General,  Hard.  314 ;  see  Moses  v.  Levi,  3  Y.  &  C.  359. 

[i)  Doyle  V.  Blake,  2  Sch.  &  Lef.  231  ;  Lees  v.  Sanderson,  4  Sim.  28 ;  Kilbee  v. 
Sneyd,  2  Moll.  200,  per  Sir  A.  Hart ;  see  Moses  v.  Levi,  3  Y.  &  C.  359. 

{u)  Hovey  v.  Blakeman,  4  Ves.  608,  per  Lord  Alvanley. 

{v)  Chambers  v.  Minchin,  T  Ves.  197,  per  Lord  Eldon ;  Shipbrook  v.  Hinchin- 
brook,  11  Ves.  254;  S.  C.  16  Ves.  479,  per  eunckm. ;  see  Murrell  v.  Cox,  2  Vern. 
570,  and  compare  Scurfield  v.  Howes,  3  B.  C.  C.  94;  (note,  the  doctrine  at  the 
period  of  the  last  case  had  not  been  settled  ;)  and  see  Moses  v.  Levi,  3  Y.  & 
C.  359.  ^ 

(w)  Chambers  v.  Minchin,  7  Ves.  186;  Shipbrook  v.  Hinchinbrook,  11  Ves. 
252  ;  Underwood  v.  Stevens,  1  Mer.  712  ;  Bick  v.  Motley,  2  M.  &  K.  312  ;  Williams 
v.  JSixon,  2  Beav.  472  ;  Hewett  v.  Foster,  6  Beav.  259. 


GENERAL    PROPERTIES    OF    OFFICE    OF    TRUSTEE.     295 

sentation  of  his  co-executor  as  to  the  necessity  or  propriety  of  the  act, 
for  the  executor  has  imposed  upon  him  at  least  ordinary  and  reasonable 
diligence  to  inquire  whether  the  representation  is  true.(a;) 

And  if,  at  a  period  when  in  the  ordinary  course  of  administration 
the  debts  should  long  sinee  have  been  discharged,  an  executor  is  applied 
to  by  his  co-executor  to  join  in  a  transfer  of  stock  for  the  purpose  of 
payment  of  debts,  and  the  executor  does  inquire,  and  ascertains  there 
are  such  debts,  but  afterwards  it  turns  out  that  the  co-executor  had  in 
his  hands  a  fund  sufficient  for  the  payment  of  the  debts,  in  such  a  case 
the  executor  who  joins  in  the  receipt  is  liable  to  the  imputation  of  neg- 
ligence for  not  having  acquainted  himself  how  the  co-executor  had  dealt 
with  the  assets  during  the  preceding  period,  and  is  liable  for  the  appli- 
cation of  the  money  he  enables  the  co-executor  to  receive. (y) 

*And  the  executor  will  be  answerable  if  he  leave  the  money,  ^^^.-1^-. 
as  for  two  years,  in  the  hands  of  the  co-executor,  when  by  the  L  -^ 
terms  of  the  trust  it  ought  to  have  been  invested  on  proper  securities. (2) 
But,  of  course,  an  executor  will  not  be  called  upon  to  replace  so  much 
of  the  fund  as  it  can  be  proved  the  co-executor  bona  Jide  expended 
toward  the  purposes  of  the  trust. (a) 

A  notion  was  very  commonly  entertained,  until  recent  decisions,  that 
if  an  executor  merely  proved  the  will  and  remained  passive,  he  incurred 
no  liability  for  a  devastavit  by  the  co-executors  ;  but  the  contrary  has 
now  been  established.  Thus,  in  Styles  v.  Guy,(6)  a  testator  appointed 
three  executors,  all  of  whom  proved  the  will ;  but  one  of  them,  viz., 
Guy,  was  the  acting  executor.  Guy,  at  the  death  of  the  testator,  had 
large  assets  in  his  hands,  with  which  he  eventually  absconded.  The 
two  co-executors  were  held  responsible  for  the  loss  ;  and  though  free 
from  blame  morally,  had  to  pay  upwards  of  20,000/.  out  of  their  own 
pockets.  They  knew,  or  ought  to  have  known,  that  Guy  was  a  debtor 
to  the  estate  ;  and  having  by  probate  accepted  the  executorship,  it  was 
their  duty  to  have  recovered  the  debt  from  Guy  as  from  any  other  debtor 
to  the  estate,  and  this  they  neglected  to  do  for  a  period  of  six  years. 

The  rules  respecting  co-executors  are  equally  applicable  to  co-admin- 
istrators. Lord  Hardwicke  once  expressed  an  opinion,  that  joint  admin- 
istrators resembled  rather  co-trustees,  and  that  any  one  of  them  could 
not  exercise  the  office  without  the  concurrence  of  the  rest  ;(c]  but  it  was 
afterwards  determined  in  the  Court  of  King's  Bench,  that  joint  admin- 
istrators and  co-executors  stood  in  this  respect  precisely  on  the  same 
footing.^c?) 

(x)  Shipbrook  V.  Hincliinbrook,  11  Ves.  252,  see  254;  Underwood  v.  Stevens, 

1  Mer.  "712 ;  Hewett  v.  Foster,  6  Beav.  259. 

(ij)  Shipbrook  v.  Hinchinbrook,  11  Ves.  254,  per  Lord  Eldon  ;  Bick  v.  Motley, 

2  M.  &  K.  312. 

(2)  Scurfield  v.  Howes,  3  B.  C.  C.  91 ;  and  see  Lincoln  v.  Wright,  4  Beav.  427. 

(a)  Shipbrook  v.  Hinchinbrook,  11  Ves.  252;  S.  C.  16  Ves.  477;  Williams  v. 
Nixon,  2  Beav.  472  ;  Kilbee  v.  Sneyd,  2  Moll.  213,  per  Sir  A.  Hart;  Underwood 
v.  Stevens,  1  Mer.  712 ;  and  see  Brice  v.  Stokes,  11  Ves.  328  ;  Hewett  v.  Foster,  6 
Beav.  259. 

(b)  I  Mac.  &  Gor.  422  ;  and  see  Scully  v.  Delanj-,  2  Ir.  Eq.  Rep.  165. 

(c)  Hudson  v.  Hudson,  1  Atk.  460. 

(d)  Willand  v.  Fenn,  cited  Jacomb  v.  Harwood,  2  Ves.  2G7. 


296 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


To  return  to  tlie  liabilities  of  co-trustees,  if  one  trustee  be 
[*317]  *gognigant  of  a  breach  of  trust  committed  by  another,  and  either 
industriously  conceal  it,(e)  or  do  not  take  active  measures  for  the  protec- 
tion of  the  cestui' s  que  trust  interest,(/)  he  will  himself  become  respon- 
sible for  the  mischievous  consequences  of  the  act.  A  trustee  is  called 
upon,  if  a  breach  of  trust  be  threatened,  to  prevent  it  by  obtaining  an 
injunction, (^)  and,  if  a  breach  of  trust  has  been  already  committed,  to 
file  a  bill  for  the  restoration  of  the  trust  fund  to  its  proper  condition,(7!,) 
or,  at  least,  to  take  such  other  active  measures,  as,  with  a  due  regard  to 
all  the  circumstances  of  the  case^  may  be  considered  the  most  pruden- 
tial. («) 

An  express  clause  is  usually  inserted  in  trust-deeds,  that  one  trustee 
shall  not  be  answerable  for  the  receipts,  acts,  or  defaults  of  his  co-trus- 
tee. But  the  proviso,  while  it  informs  the  trustee  of  the  general  doc- 
trine of  the  court,  adds  nothing  to  his  security  against  the  liabilities  of 
the  office.  In  Wesley  v.  Clarke(/t)  Lord  Northington  was  inclined  to 
attach  some  importance  to  the  clause.  <<  The  testator,"  he  said,  ^'  might 
direct  the  condition  of  his  executors  so  as  not  to  be  questioned  by  his 
volunteers.  The  proviso,  therefore,  that  one  executor  should  not  be 
answerable  for  the  acts  of  another,  though  not  very  frequent  in  wills, 
was  a  good  proviso  between  executors  and  legatees  who  took  under  the 
will."  But  equity  infuses  such  a  proviso  into  every  trust-deed, (/)  and  a 
party  can  have  no  better  right  from  the  expression  of  that  which,  if  not 
expi'essed,  had  been  virtually  implied. (?n)  It  is  clear,  that,  in  later 
cases,  the  court  has  considered  it  an  immaterial  circumstance  whether 
the  instrument  creating  the  trust  contained  such  a  proviso  or  not.(;i) 
|-^o-io-i  *VI.  It  is  a  general  rule  established  to  keep  trustees  in  the 
L  -J  line  of  their  duty,  that  they  shall  not  derive  any  personal  advan- 
tage from  the  administration  of  the  property  committed  to  their  charge. (o) 
It  was  upon  this  principle  that  Lord  Eldon  once  directed  an  inquiry, 
whether  the  liberty  of  sporting  over  the  trust  estate  could  be  let  for  the 
benefit  of  the  cestuis  que  trust,  and,  if  not,  he  thought  the  game  should 
belong  to  the  heir ;  the  trustee  might  appoint  a  gamekeeper,  if  necessary 
for  the  preservation  of  the  game,  but  not  to  keep  up  a  mere  establish- 

(e)  Boardman  v.  Mosman,  1  B.  C.  C.  68. 

(/)  Brice  v.  Stokes,  11  Yes.  319;  and  see  Walker  v.  Symonds,  3  Sw.  41; 
Oliver  v.  Court,  8  Price,  IGG  ;  In  re  Chertsey  Market,  6  Price,  279  ;  Attorney- 
General  V.  Holland,  2  Y.  k  C.  699  ;  Booth  v.  Booth,  1  Beav.  125;  Williams  v. 
Nixon,  2  Beav.  472;  Blackwood  v.  Borrowes,  2  Conn.  &  Laws.  477. 

(ff)  See  In  re  Chertsey  Market,  6  Price,  279. 

(A)  Franco  v.  Franco,  3  Yes.  75  ;  Earl  Powlet  v.  Herbert,  1  Yes.  jun.  297. 

(i)  See  Walker  v.  Symonds,  3  Sw.  71.  (k)   1  Ed.  360. 

(l)  See  Dawson  v.  Clarke,  18  Yes.  254.  (wi)  Worrall  v.  Harford,  8  Yes.  8, 

(n)  Brice  v.  Stokes,  11  Yes.  319;  Bone  v.  Cook,  M'Clel.  168;  S.  C.  13  Price, 
332  ;  Hanbury  v.  Kirkland,  3  Sim.  265;  Moyle  v.  Moyle,  2  R.  &  M.  710 ;  Sadler  v.' 
Hobbs,  2  B.  C.  C.  114;  Mucklow  v.  Fuller,  Jac.  198  ;  Pride  v.  Fooks,  2  Beav.  430; 
Williams  v.  Nivon,  2  Beav.  472. 

(o)  Burgess  v.  Wheate,  1  Ed.  226,  per  Lord  Mansfield;  ib.  251,  per  Lord  Henley; 
O'Herlihy  v.  Hedges,  1  Sch.  &  Lef.  126,  per  Lord  Redesdale  ;  Ex  parte  Andrews, 
2  Ptose,  412,  per  Sir  T.  Plumer;  Middleton  v.  Spicer,  1  B.  C.  C.  205,  per  Lord 
Thurlow;  Docker  v.  Somes,  2  M.  &  K.  664,  per  Lord  Brougham  ;  Gubbins  v.  Creed, 
2  Sch  &  Lef.  218,  per  Lord  Redesdale;  and  see  Hamilton  v.  Wright,  9  CI.  &  Fin. 
Ill ;  Bentley  v.  Craven,  18  Beav.  75;  Sugden  v.  Crossland,  3  Sm.  &  Giff.  192. 


GENERAL    PROPERTIES    OF    OFFICE    OF    TRUSTEE.     297 

ment  of  pleasure. (p)  So,  if  an  advowson  be  devised  to  trustees  upon 
trust  to  sell,  and,  before  the  sale  has  been  effected,  a  vacancy  occurs, 
the  right  of  presentation  is  not  to  be  exercised  by  the  trustee  at  his  own 
pleasure,  but  he  must  adopt  the  nomination  of  the  testator's  heir  at 
law.  (5') 

So,  if  trustees  or  executors  buy  in  any  debt  or  incumbrance  to  which 
the  trust  estate  is  liable  for  a  less  sum  than  is  actually  due  thereon,  they 
will  not  be  allowed  to  take  the  benefit  to  themselves,  but  the  other  cre- 
ditors or  legatees  shall  have  the  advantage  of  it ;  and  if  there  be  no  such 
claimants,  it  shall  go  to  the  party  who  is  entitled  to  the  surplus. (r) 

Mortgagees  are  to  some  though  not  to  all  intents  and  purposes  trustees, 
and  in  one  case,  the  authority  of  which,  however,  *has  been  r^3]^9-| 
doubted,  where  a  mortgagor  in  fee  died,  and  the  mortgagee  L  J 
bought  in  the  mortgagor's  wife's  right  of  dower  it  was  decreed  that  the 
heir  of  the  mortgagor,  on  bringing  his  bill  to  redeem,  might  take  the 
purchase  at  the  price  paid.(s^ 

Again,  if  trust  money  be  laid  out  by  a  trustee  in  buying  and  selling 
land,  and  a  profit  be  made  by  the  transaction,  that  shall  go,  not  to  the 
trustee  who  has  so  applied  the  money,  but  to  the  cestui  que  trust  whose 
money  has  been  applied. (^)  So  where  a  trustee  or  executor  has  used  the 
fund  committed  to  his  care  in  stock  speculations,  though  any  loss  must 
fall  exclusively  upon  himself,  he  must  account  to  the  trust  estate  for 
every  farthing  of  profit.  If  he  lay  out  the  trust  money  in  any  commer- 
cial adventure,  as  in  buying  or  fitting  out  a  vessel  for  a  voyage,  or  put 
it  in  the  trade  of  another  person  from  which  he  is  to  derive  certain  stip- 
ulated gains,(M)  or  if  he  employ  it  himself  for  the  purposes  of  his  own 
business,  in  all  these  cases  he  must  account  to  the  cestui  que  trust  for  the 
profits,  (w) 

As  the  trustee  of  an  estate  cannot  receive  any  advantage  from  it,  he 
cannot  be  appointed  the  receiver  at  a  salary  ;(io)  and  even  should  he  offer 

(p)  "Webb  V.  Earl  of  Shaftesbury,  1  Ves.  480,  see  488;  and  see  Hutchinson  v. 
Morritt,  3  Y.  &  C.  547.  ,^    „   ^ 

(q)  Hill  V.  Bishop  of  London,  1  Atk.  618;  In  re  Shrewsbury  School,  1  M.  &  Lr. 
647;  Martin  v.  Martin,  12  Sim.  579;  Sherrard  v.  Lord  Harborough,  Arab.  165; 
Cooke  V.  Cholmondeley,  3  Drewry,  1 ;  and  see  Hawkins  v.  Chappell,  1  Atk.  621; 
Gubbins  V.  Creed,  2  Sch.  &  Lef.  218. 

(r)  Robinson  v.  Pett,  3  P.  W.  251,  note  (A;)  Darcy  v.  Hall,  1  Vern.  49;  Ex 
parte  Lacey,  6  Ves.  628,  per  Lord  Eldon;  Morrett  v.  Paske,  2  Atk.  54,  per  Lord 
Hardwicke;  Anon.  1  Salk.  155  ;  Carter  v.  Home,  1  Eq.  Ca.  Ab.  7;  Dunch  v.  Kent, 

1  Vern.  260  ;  Fosbrooke  v.  Balguy,  1  M.  &  K.  226. 

(s)  Baldwin  v.  Banister,  cited  Robinson  v.  Pett,  3  P.  W.  251,  note  (A),  and  see 
comments  thereon ;  Dobson  v.  Land,  8  Hare,  220;  and  compare  Arnold  v.  Garner, 

2  Phil.  231;  Mathison  v.  Clarke,  3  Drewry,  3. 
(t)  Fosbrooke  v.  Balguy,  1  M.  &  K.  226. 

(u)  Docker  v.  Somes,  2  M.  &  K.  664,  per  Lord  Brougham.  .,    ,   n 

(v)  S.  C.  id.  665;  Wedderburn  v.  Wedderburn,  2  Keen,  722;  S.  C.  4  M.  &  Or. 
41;  but  see  S.  C.  2  Jur.  N.  S.  674;  Willett  v.  Blandford,  1  Hare,  253;  and^see 
Portlock  V.  Gardner,  1  Hare,  603;  Cummings  v.  Cummings,  8  Ir.  Eq.  Rep.  723; 
Parker  v.  Bloxam,  20  Beav.  295  ;  Wedderburn  v.  Wedderburn,  reported  on  the 
late  hearing  before  the  master  of  the  rolls,  22  Beav.  84.  It  appears  from  a  note 
by  the  reporter  at  page  124,  that  the  decision  was  appealed  from,  but  that  the 
suit  was  compromised. 

(«•)  Sutton  V.  Jones,  15  Ves.  584 ;  Sykes  v.  Hastings,  11  "\  es.  303  ;  — -  v.  Hol- 
land, 8  Ves.  72;  Anon.  3  Ves.  515;  and  see  Morison  v.  Morisou,  4  M.  &  C.  215. 


298  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

his  services  gratuitously,  lie  would  not  be  appointed  except  under  parti- 
cular circumstances,  for  it  is  the  duty  of  the  trustee  to  superintend  the 
receiver  and  check  the  accounts  with  an  adverse  eje;(x)  but  if  a  person 
be  merely  a  trustee  to  preserve  contingent  remainders,  the  reasons  for 
excluding  him  are  held  not  to  be  applicable.(.y) 

So  a  trustee  or  executor  who  is  a  factor,(2;)  broker,(a)  *com- 
L  J  mission  agent,(5)  or  auctioneer, (c)  can  make  no  profit  from  the 
trust  estate  in  the  way  of  his  business. 

So  a  trustee  who  is  a  solicitor  cannot  charge  the  estate  for  his  profes- 
sional labours,  but  will  be  allowed  merely  his  costs  out  of  pocket,((^) 
unless  there  be  a  special  contract  to  that  eflfectj^e)  nor  can  the  charge  be 
made  by  a  firm  of  which  the  trustee  is  a  partner,(/)  even  though  the 
business  be  done  by  one  of  the  partners  who  is  not  a  trustee  ;(<7)  but  a 
country  solicitor  defending  a  suit  in  chancery  as  executor,  through  a  town 
agent,  will  be  allowed  such  proportion  of  the  agent's  bill  in  respect  of  the 
defence  as  such  agent  is  entitled  to  receive. (A) 

In  one  case  the  principle  of  the  rule  was  held  not  to  apply  where  sev- 
eral co-trustees  were  made  defendants  to  a  suit,  this  being  a  matter  thrust 
upon  them  and  beyond  their  own  control.  One  of  the  trustees,  who  was 
a  solicitor,  was  allowed  to  act  for  himself  and  the  others,  and  to  receive 
the  full  costs,  it  not  appearing  that  they  had  been  increased  through  his 
conduct. (A  But  this  decision  is  open  to  comment.  If  the  distinction 
be  made  between  costs  out  of  court  and  costs  in  court,  because,  as  regards 
the  latter,  the  conduct  of  the  trustee  is  under  the  cognisance  of  the  court, 
and  the  costs  are  to  be  taxed,  the  rule  would  equally  apply  to  the  case 
of  a  single  trustee  defending  himself;  yet  it  is  difficult  to  conceive  any 
other  ground  for  the  distinction. (A-)  The  exception  made  appears  to 
stand  by  itself,  and  is  not  likely  to  be  extended.  Indeed  where  a  single 
trustee  defended  himself  by  his  partner,  the  professional  profits  were 
disallowed.  0 

The  foregoing  principles  affect  not  only  express  trustees,  but  also  all  such 
r*R911  ^^  ^^^  clothed  with  the  same  character  by  ^construction  of  law, 
L  J  as  if  a  person  purchase  an  estate  with  another's  monei/,  or  invest 
another's  projpertf/  in  some  trade  or  speculation. (m)     So,  an  attorney, 

(z)  Sykes  v.  Hastings,  11  Ves.  364,  per  Lord  Eldon. 

(y)  Sutton  V.  Jones,  15  Ves.  587,  per  Lord  Eldon. 

(z)  Scattergood  v.  Harrison,  Moseley,  128. 

(a)  Arnold  v.  Garner,  2  Phil.  231.  (6)  Sheriff  V.  Axe,  4  Russ.  33. 

(c)  Mathison  v.  Clarke,  3  Drewry,  3. 

(d)  New  V.  Jones,  Exch.  Aug.  9, 1833,  9  Bythew.  by  Jarm.  338  ;  Moore  v.  Frowd, 
3  M.  &  Cr.  46 ;  Fraser  v.  Palmer,  4  Y.  &  C.  515  ;  York  v.  Brown,  1  CqU.  260j 
Broughton  v.  Broughton,  5  De  Gex,  Mac.  &  Gor.  160. 

(c)  In  re  Sherwood,  3  Beav.  338. 

(f)  Collins  V.  Carey,  2  Beav.  128  ;  Lincoln  v.  Windsor,  9  Hare,  158. 

h)  Christophers  v.  White,  10  Beav.  523. 

(h)  Burge  V.  Burton,  2  Hare,  373. 

(i)  Cradock  v.  Piper,  1  Mac.  &  Gor.  664;  S.  C.  1  HalL  &  Tw.  617;  overruling 
Bainbrigge  v.  Blair,  8  Beav.  588. 

{k)  See  Broughton  v.  Broughton,  2  Sim.  &  Gif.  422  ;  5  De  Gex,  Mac.  &  Gor,  160. 

(1)  Lyon  V.  Baker,  5  De  Gex  &  Sm.  622. 

(m)  Docker  v.  Somes,  2  M.  &  K.  665 ;  Crawshay  v.  Collins,  15  Ves.  218  ;  S.  C. 
1  J.  &W.  267;  S.  C.  2  Russ.  325.  >  J  '  > 


GENERAL    PROPERTIES    OF    OFFICE    OF    TRUSTEE.     299 

» 

guardian,  or  other  person  invested  with  a  fiduciary  character,  must  ac- 
count for  all  profits  to  the  client,  or  infant,  or  other  party  whose  confi- 
dence he  has  abused. r?i) 

However,  a  trustee  may  hj possibiUfi/  derive  a  benefit  from  the  trust 
estate,  not  from  any  positive  right  in  himself,  but  from  the  want  of  right 
in  any  other;  as  if  lands  be  vested  in  A.  and  his  heirs  upon  trust  for 
B,  and  his  heirs,  and  B.  die  without  an  heir,  the  equitable  interest  in 
this  case  can  neither  escheat  to  the  lord,(o)  nor,  if  the  trust  was  created 
by  conveyance  from  B.  whose  seisin  or  title  was  ex  parte  paternd,  can 
the  lands,  upon  failure  of  heirs  in  that  line,  descend  to  the  heir  ex  parte 
mate7'na  ;[p)  but  the  trustee,  no  person  remaining  to  sue  a  subpoena, 
must  as  the  legal  proprietor,  himself  enter  upon  the  beneficial  enjoy- 
ment. Lord  Hale  was  clearly  of  this  opinion,  and  compared  it  to  the 
case  of  the  grantee  of  a  rent  charge  in  fee  dying  without  heirs,  when 
the  tenant  of  the  land  should  hold  it  discharged  of  the  rent.(j)  In  Bur- 
gess V.  Wheate,  Sir  Thomas  Clarke  said  he  would  give  no  opmion  on  the 
right  of  the  trustee,  but  at  the  same  time  admitted  the  trustee  must  hold 
until  a  better  right  appeared. (r)  Lord  Henley  seemed  to  entertain  no 
doubt  upon  the  subject,  and  considered  Lord  Hale's  illustration  by  the 
extinguishment  of  a  rent  as  a  suflScient  answer  to  the  objection  of  want 
of  title  in  the  trustee,(sj  and  the  point  must  now  be  considered  as  clearly 
settled,  (z') 

But  if  an  estate  be  held  by  A.  upon  trust  for  B.,  and  B.  die  without 
leaving  an  heir,  but  having  devised  the  estate  to  C.  and  D.  upon  trust, 
which  fail  or  do  not  exhaust  the  beneficial  *interest ;  A.  cannot  r^ooon 
insist  on  retaining  the  estate  upon  ofi"ering  to  satisfy  the  charges,  L  "'^J 
if  any,  but  will  be  bound  to  convey  the  estate  to  C.  and  D.  as  the  nom- 
inees in  the  will,  and  entitled  as  against  A.,  the  bare  trustee,  and  the 
court  as  between  those  parties  will  not  inquire  into  the  nature  of  the  trust 
or  how  far  it  can  be  executed. («) 

It  seems  to  follow  from  the  principles  laid  down  in  Burgess  v.  Wheate, 
that,  where  a  purchaser  has  paid  the  consideration  money,  and  then 
dies  without  an  heir  before  the  execution  of  the  conveyance,  the  vendor 
must  keep  both  the  estate  and  the  money. (lA 

In  the  same  case,  and  in  reference  to  the  supposed  event  of  a  mortga- 
gor in  fee  dying  and  leaving  no  heir,  the  questions  were  asked  :  first, 
should  the  mortgagee  hold  the  estate  absolutely  ?  and,  secondly,  if  the 
mortgagee  demanded  his  debt  of  the  personal  representative,  should  he 
take  to  himself  both  the  land  and  the  debt?  "If  the  mortgagor,"  ob- 
served Sir  Thomas  Clarke,  "  dies  without  heir  or  creditor,  I  see  no  in- 
convenience if  the  mortgagee  do  hold  the  estate  absolutely ;  and  as  to 

(n)  See  Docker  v.  Somes,  2  M.  &  K.  665. 
\o)  Burgess  \.  Wheate,  1  Ed.  IT 7. 
Ip)  See  id.  186,  216,  256. 

{g)  Attorney-General  v.  Sands,  Hard.  496  ;  and  see  Carr,  14. 
(r)   1  Ed.  212,  213.  (s)   1  Ed."253. 

Ijt)  Taylor  v.  Haygarth,  14  Sim.  8 ;  Davall  v.  New  River  Company,  3  De  Gex  & 
Sm.  394 ;  Cox  v.  Parker,  2  Jnr.  N.  S.  842  ;  now  reported  22  Bear.  168. 
(m)  Onslow  V.  Wallis,  1  Mac.  &  Gor.  506. 
\v)  1  Ed.  211,  per  Sir  T.  Clarke. 


300  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

the  supposition  that  the  mortgagee  may  demand  his  debt  too,  I  think,  if 
the  mortgagee  took  his  remedy  against  the  personal  representative,  the 
court  would  compel  him  to  reconvey,  not  to  the  loi'd  by  escheat,  but  to 
the  personal  representative,  and  would  consider  the  estate  reconveyed  as 
coming  in  lieu  of  the  personalty,  and  as  assets  to  answer  even  simple 
contract  creditors. "(w)  Lord  Mansfield  said,  "  He  could  not  state  on  any 
ground  established  what  would  be  the  determination  in  that  case.(x) 
Lord  Henley  observed,  <'  The  lord  has  his  tenant  and  services  in  the 
morto'ao-ee,  and  he  has  no  right  to  anything  more.  Perhaps  it  would  not 
be  difficult  to  answer  what  would  be  the  justice  of  the  case,  but  it  is  not 
to  the  business  in  hand.(^)  A  recent  decision  of  the  present  master  of 
the  rolls  establishes  that  the  mortgagee  holds  absolutely,  subject  only  to 
the  qualification  that  the  equity  of  redemption  is  assets  for  the  payment 
of  the  mortgagor's  debts. (s) 

*But  a  failure  of  inheritable  blood  may  happen  not  only  for 
L  J  want  of  an  heir,  (as  in  the  case  of  an  illegitimate  person  dying 
without  issue,)  but  through  the  corruption  of  blood  caused  by  attainder, 
under  the  old  law  for  felony^  or  now  for  i->€tit  treason  or  murder  ;  and 
in  the  case  of  su^ch  attainder,  the  question  arises,  shall  the  trustee  hold 
against  the  person  attainted  if  pardoned,  or  against  his  heir  where  attain- 
der is  followed  by  execution  ?  Sir  Thomas  Clarke  said,  "  The  detain- 
ing the  estate  against  the  crown  where  the  cestui  que  trust  dies  without 
leaving  a  relation  is  different  from  detaining  it  against  the  cestui  que 
trust  himself.  The  court  would  go  as  far  as  it  could,  and  he  thought 
the  trustee  would  be  estopped  from  settiugup  such  a  claim. "(«)  Lord 
Mansfield  said,  "  He  could  not  resolve  the  case  upon  principle,  for  he 
could  find  no  clear  and  rertain  rule  to  go  hy."(^h\  But  Lord  Henley 
agreed  with  Sir  Thomas  Clarke,  and  asked,  "  If  the  king  thinks  proper 
to  pardon  the  felon,  what  hinders  him  from  suing  his  trustee? — what 
hinders  him  from  instantly  assigning  his  trust  for  the  benefit  of  his 
family  ?''(t)  If  trusts  were  to  follow  the  analogy  of  uses,  the  Jieir  of  the 
attainted  person  could  not  sue  his  suhporyia  by  reason  of  the  corruption 
of  blood  ;(c?)  but  trusts  at  the  present  day  are  administered  on  much 
more  liberal  principles  than  uses  formerly  were. 

A  question  was  put  by  Lord  Mansfield  in  Burgess  v.  Wheate,  but  was 
neither  answered  at  the  time,  nor  received  any  notice  from  the  bench 
afterwards,  viz.  whether  the  right  to  the  estate  might  not,  in  particular 
cases,  result  to  the  author  of  the  trust. (f)  As,  if  A.  enfeoff  B.  and  his 
heirs  upon  trust  for  C.  and  his  heirs,  and  C.  die  without  heirs,  why  may 
not  the  equitable  interest  result  in  favour  of  A.  ?  Such  a  case  has  never 
occurred,  and  there  is  no  authority  upon  the  subject;  but  the  claim  of 
A.  appears  at  least  to  have  some  plausibility. 

As  the  trustee  in  these  cases  advances  not  a  positive,  but  merely  a 

(w)   1  Ed.  210.  (x)   Id.  236. 

(y)  Id.  256  ;  and  see  Viscount  Downe  v.  Morris,  3  Hare,  394. 
U)  Beale  v.  Symonds,  16  Beav.  406. 

(a)  1  Ed.  210.  (6)  Id.  236  ;  and  see  id.  184. 

(c)  Id.  255  ;  as  to  the  necessity  for  the  pardon  containing  words  of  restitution. 
see  Bullock  v.  Dodds,  2  B.  &  Aid.  277. 

((/)  Br.  Feff.  al.  Us.  34;  Gary,  14.  (e)   ]  Ed.  185. 


GENERAL    PROPERTIES    OF    OFFICE    OF    TRUSTEE.     301 

negative  claim,  lie  lias  no  ground  for  coming  into  a  court  of  equity  for 
the  establishment  of  his  right.(/)  Thus  *where  A.  devised  a  |-:^q9_i-i 
copyhold  estate  to  JB.  and  his  heirs  in  trust  for  C.  and  his  heirs,  L  "•  J 
and  C.  died  without  heirs,  and  then  B.  died,  having  entered  upon  the 
lands,  and  applied  the  rents  to  the  trust,  but  never  having  been  admitted, 
and  the  heir  of  B.  filed  a  bill  against  the  lord  for  compelling  him  to 
grant  him  admission,  Lord  Loughborough  said,  "  The  ground  for  the 
court's  acting  between  the  lord  and  tenant  is,  that  the  lord  de  jure  may 
call  upon  the  tenant  to  be  admitted  if  he  stands  out,  for  he  has  a  right 
to  the  fine  and  his  services  ;  and  the  court  would  not  let  the  parties  stand 
in  this  situation,  that  the  lord  who  had  his  remedy  against  the  tenant 
should,  by  refusing  to  call  upon  him,  prevent  him  from  having  evidence 
of  his  title  under  the  lord  upon  the  rolls,  which  are  in  the  lord's  keeping. 
The  court  acts  in  this  case  upon  the  ground  of  the  tenant's  having  the 
beneficial  interest  in  the  land,  but  is  there  any  instance  of  a  bill  sustained 
upon  a  mere  legal  title  for  an  accessory  to  the  legal  estate  ?  If  the 
admission  be  a  legal  duty,  I  do  not  know  what  I  have  to  do  with  it. 
Burgess  v.  Wheate,  supposing  it  well  decided,  established,  that,  if  a  man 
had  got  the  legal  estate,  the  court  would  not  take  it  from  him,  except 
for  some  person  who  had  a  claim ;  but  does  it  follow  that  the  court  will 
give  him  the  legal  estate  ?"(i/) 

As  courts  of  law  have  no  cognisance  of  any  but  legal  rights,  it  should 
seem  that  a  mandamus  might  be  issued  from  the  Queen's  Bench  for 
compelling  the  admission  even  of  a  bare  trustee. (A) 

If  the  cestui  quetrust  of  chattels,  whether  real  or  personal,  die  without 
leaving  any  next  of  kin,  the  beneficial  interest  will  not,  in  this  case, 
remain  with  the  trustee,  but  like  all  other  hona  vacantia  will  vest  in 
the  king  by  his  prerogative.  However,  this  doctrine  will  only  take 
eff"ect  where  the  cestui  que  trust  dies  intestate, {^i'^  or  has  appointed  an 
executor,  who  by  the  language  of  the  will  itself  is  excluded  from  any 
beneficial  interest  ;(A;)  for  an  executor  not  expressly  made  a  trustee  by 
*the  will,  was  before  thelate  act,(?)  eniiiXQdi  prima  facie  to  the  sur-  r-^j^oQr-i 
plus  for  his  own  benefit,  and  that  statute  has  now  converted  him  into  L  ^"  -I 
a  trustee  for  the  next  of  Mn  only,  and  does  not  seem  to  have  altered  the 
old  law,  as  between  him  and  the  crown,  in  case  there  be  no  next  of  kin. 

AVe  may  conclude  this  head  with  the  general  proposition,  that  a  trus- 
tee is,  under  no  circumstances,  allowed  to  set  up  a  title  adverse  to  his 
cestui  que  trust. {in)     But  though  he  may  not  claim  against  his  own 

(/)  See  1  Ed.  212  ;  and  see  Onslow  v.  Wallis,  1  Mac.  &  Gor.  506. 

(g)  Williams  v.  Lord  Lonsdale,  3  Ves.  752  ;  see  756,  757. 

(A)  See  King  v.  Coggan,  6  East,  431 ;  S.  C.  2  Smith,  417  ;  King  v.  Wilson,  10 
B.  &  C.  80. 

(i)  Jones  v.  Goodchild,  3  P.  W.  33  ;  Rutherford  v.  Maule,  4  Hagg.  213. 

{k)  Middleton  v.  Spicer,  1  B.  C.  0.  201  ;  Taylor  v.  Haygarth,  14  Sim.  8  ;  Rus- 
sell V.  Clowes,  2  CoUyer,  648  ;  Powell  v.  Merrett,  1  Sm.  &  Gif.  381 ;  and  see  Bar- 
clay V.  Russell,  3  Ves.  424  ;  Henchman  v.  Attorney-General,  2  S.  &  S.  498  ;  S.  C. 
3  M.  &  K.  485  ;  Cave  v.  Roberts,  8  Sim.  214. 

{I)   11  G.  4  &  1  W.  4,  c.  40. 

(m)  See  Attorney-General  v.  Munro,  2  De  Gex  &  Smale,  163  ;  Stone  v.  Godfrey, 
5  De  Gex,  Mac.  &  Gor.  76;  Ex  parte  Andrews,  2  Rose,  412  ;  Kennedy  v.  Daly,  1 
Sch.  &  Lef.  381 ;  Shields  v.  Atkins,  3  Atk.  560 ;  Pomfret  v.  AVindsor,  2  Yes.  476  ; 

February,  1858.— 20 


302 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


cestui  que  trust,  yet  lie  is  not  bound  to  deliver  over  tlie  property  to  his 
cestui  que  trust  if  he  cannot  safely  do  so  by  reason  of  notice  of  title  in 
another  which  is  paramount  to  the  trust.  (?i) 


r*326]  ^CHAPTER    XIII. 

THE  DUTIES  OF  TRUSTEES  OF  CHATTELS  PERSONAL. 

We  next  advance  to  the  duties  of  trustees,  and  as  trusts  of  chattels 
personal  are  of  the  most  frequent  occurrence,  we  may  first  advert  to 
trustees  of  property  of  this  description.  We  may  consider  this  branch 
of  our  subject  under  five  heads  : — 1.  The  reduction  of  the  chattel  into 
the  possession  of  the  trustee.  2.  The  safe  custody  of  it.  3.  The  proper 
investment  of  the  trust  fund.  4.  The  liability  of  trustees  to  payment  of 
interest  in  cases  of  improper  detainer :  and,  5.  The  distribution  of  the 
trust  fund. 

SECTION  I. 

OF  REDUCTION   INTO    POSSESSION. 

The  first  duty  of  trustees  is  to  place  the  trust  property  in  a  state  of 
security.  Thus  if  the  trust  fund  be  an  equitable  interest  of  which  the 
legal  estate  cannot  be  at  present  transferred  to  them,  it  is  their  duty  to 
lose  no  time  in  giving  notice  of  their  own  interest  to  the  persons  in 
whom  the  legal  estate  is  vested ;  for  otherwise  the  party  who  created  the 
trust  might  incumber  the  interest  he  has  settled  in  favor  of  a  purchaser 
without  notice. (a) 

If  the  trust-fund  be  a  cliose  en  action,  which  may  be  reduced  into 
possession,  it  is  the  trustees'  duty  to  be  active  in  getting  it  in  ;  and  any 
unnecessary  delay  in  this  respect  will  be  at  their  own  personal  risk. 
r*907-i  Thus,  in  CaflFrey  v.  Darby,(&)  a  woman,  in  contemplation  of  *a 
L  "^  -I  second  marriage,  had  assigned  a  leasehold  interest  with  stock  in 
trade,  household  goods,  &c.,  to  trustees  upon  trust  to  raise  800^.  to  be 
applied  to  the  purposes  in  the  settlement  mentioned,  with  a  proviso  that, 
so  long  as  her  intended  husband  should  pay  100/.  per  annum  until  the 
whole  800?.  should  be  discharged,  the  trustees  should  allow  him  to  remain 
in  possession  of  the  premises.  In  the  course  of  the  first  four  years  the 
trustees  were  paid  to  the  amount  of  250/.,  but  by  small  instalments  and 
at  irregular  periods,  and  received  nothing  afterwards.  At  the  end  of 
eight  years  the  husband  became  bankrupt,  and  a  great  part  of  the  800/. 

Conry  v.  Caulfield,  2  B.  &  B.  272  ;  Langley  v.  Fisher,  9  Beav.  90;  Reece  v.  Trje, 
1  De  Gex&  Sm.  279. 

(n)  Neale  v.  Davies,  5  De  Gex,  M.  &  G.  258. 

{a\  See  Jacob  v.  Lucas,  1  Beav.  436. 

[h)  6  Yes.  488 ;  and  see  Platel  v.  Craddock,  C.  P.  Cooper's  Cases,  1837-8,  481  ; 
M'Gacheu  v.  Dew,  15  Beav.  84  j  Wiles  v.  Gresham,  2  Drewrv,  258;  Waring  v. 
Waring,  3  Jr.  Ch.  Rep.  335. 


DUTIES    OF    TRUSTEES    OF    CHATTELS    PERSONAL.     303 

was  lost.  Sir  W.  Grant  said,  "  This  was  money  payable  by  instalments, 
not  a  sum  to  be  paid  at  once  as  a  mortgage  is,  and  secured,  too,  partly 
upon  an  estate  daily  diminisbing  in  value,  a  sbort  lease  for  twentj^-five 
years  commencing  three  years  before  the  settlement,  and  upon  stock 
in  trade,  &c.,  a  sort  of  property  very  uncertain  in  its  nature.  From  these 
two  considerations,  the  diminishing  value  of  the  property  and  the  mode 
of  payment  by  instalments,  I  am  of  opinion  the  trustees  were  not  justi- 
fied in  any  great  indulgence,  for  it  was  evident  the  debtor's  inability 
would  be  constantly  augmenting.  If  he  was  unable  to  pay  the  first  in- 
stalment, he  must  be  still  less  able  to  pay  the  sums  accumulated  from 
permitting  them  to  run  together.  The  cases  of  payment  by  instalments 
and  at  once  are  quite  difi"erent.  In  the  latter  the  debtor  may  be  able 
to  pay  that  sum  to-morrow,  or  next  year ;  but  the  chance  of  receiving 
money  by  instalments  depends  upon  its  being  regularly  received.  There- 
fore, even  though  the  trustees  might  not  have  been  under  the  necessity 
of  exacting  from  the  husband  the  money  on  the  precise  day,  yet  they 
ought  not  to  have  given  great  latitude.  They  were  hardly  justifiable 
in  permitting  two  instalments  to  become  due;  still  less  three;  still  less 
four.  But  here  they  permit  him  to  remain  four  years  in  possession 
without  receiving  a  shilling.  That  is  evidence  he  was  not  prosperous  : 
it  did  not  turn  out  as  well  as  he  expected.  It  might  be  supposed  that 
he  was  running  in  debt  with  other  people.  The  trustees  might  have  ex- 
pected a  controversy  with  the  creditors.  They  ought  therefore  to  liave 
taken  some  step  for  the  security  of  the  infant  cestuis  que  trust,  particu- 
larly when  that  is  combined  with  the  other  circumstance  *that  the  |-^.-.9n-, 
property  was  diminishing  in  value."  And  his  honour  decreed  L  "^  J 
the  trustees  to  make  good  the  deficiency. 

Again,  a  testator  had  directed  the  money  arising  from  his  rents  to  be 
invested  by  his  executors  in  the  3  per  cent,  annuities  for  the  purpose  of 
accumulation.  Arrears  were  allowed  to  run  to  the  amount  of  15U0/., 
and  from  the  tenor  of  the  master's  report  it  was  evident,  that,  by  the 
employment  of  proper  means,  the  whole  of  the  arrears  might  have  been 
recovered.  The  executors  produced  no  evidence  in  justification  of  their 
conduct.  Sir  Thomas  Plumer  said,  "I  am  anxious  not  to  discourage 
persons  from  acting  as  executors  by  throwing  difl&culties  in  their  way, 
and  I  am  willing  to  make  every  proper  allowance ;  but  I  must  not  forget 
the  established  doctrine  of  this  court.  If  persons  accept  the  trust  of 
executors,  tliey  must  perform  it ;  they  must  use  due  diligence,  and  not 
suffer  in/ants  to  he  injured  hy  their  nerjligence.  If  there  he  CRASSA 
NEGLIGENTIA,  and  a  loss  sustained  hy  the  estate,  it  falls  upon  the  cxo.cii- 
tors.  Here,  for  want  of  evidence,  I  cannot  say  that  all  this  rent  could 
not  have  been  recovered ;  and  I  am  reluctantly  obliged  to  assume  that 
no  exculpatory  evidence  could  be  produced,  and  therefore  they  must  be 
charged  with  these  arrears.  Interest  upon  the  arrears  was  but  faintly 
pressed  for,  and  ought  not  to  be  given. "(c) 

An  executor  is  not  to  allow  the  assets  of  the  testator  to  remain  out- 
standing upon  jjerso?ia?  security,((?)  though  the  debt  was  a  loan  by  the 

(c)  Tebbs  v.  Carpenter,  1  Mad.  290. 

(d)  Lowson  v.  Copeland,  2  B.  C.  C.  156  ;  Caney  v.  Bond,  6  Bear.  486;  Bailey 


304       LEWIN  ON  THE  LAW  OF  TKUSTS,  ETC. 

testator  himself  on  wliat  lie  considered  an  eligible  investment. (e)  And 
it  will  not  justify  the  executor,  if  he  merely  apply  for  payment  through 
his  attorney,  but  do  not  follow  it  up  by  instituting  legal  proceedings. (/) 
Personal  security  changes  from  day  to  day,  by  reason  of  the  personal 
responsibility  of  the  party  giving  the  security  ;  and  as  a  testator's  means 
of  judging  of  the  value  of  that  responsibility  *are  put  an  end  to 
L  J  by  his  death,  the  executor  who  omits  to  get  in  the  money  within 
a  reasonalDle  time  becomes  himself  the  security. (5^)  An  executor  will  be 
equally  liable,  as  has  lately  been  decided,  if  he  knows  that  a  co-executor 
is  a  debtor  to  the  testator's  estate,  and  does  not  take  the  same  active 
steps  for  recovery  of  the  amount  from  the  co-executor,  as  it  would  have 
been  his  duty  to  take  against  a  stranger.  And  it  does  not  vary  the  case 
that  the  testator  himself  was  in  the  habit  of  leaving  money  in  the  hands 
of  that  co-executor,  and  treating  him  as  a  private  banker. (A)  Nor  will  an 
executor  be  excused  for  not  calling  in  money  on  personal  security  by  a 
clause  in  the  will,  that  the  executors  are  to  call  in  "  securities  not 
approved  by  them ;"  for  such  a  direction  is  construed  as  referable  to 
securities  upon  which  a  testator's  property  may  allowably  be  invested, 
and  not  as  authorising  an  investment  which  the  court  will  not  sanction. (A 
If,  however,  it  appears,  or  there  is  reasonable  ground  for  believing,  that 
had  legal  steps  been  taken  they  would  have  produced  no  result,  the  exe- 
cutor or  trustee  is  not  liable. (A) 

But  where  a  great  part  of  the  assets  was  outstanding  on  Mexican 
bonds,  and  the  executors  sold  in  the  course  of  the  second  year  from  the 
testator's  decease,  it  was  held  by  Lord  Cottenham,  that,  if  executors 
were  bound  at  once  to  convert  the  assets  without  considering  how  far  it 
was  for  the  interest  of  the  persons  beneficially  entitled,  there  would  of 
necessity  be  always  an  immediate  sale,  and  often  at  a  great  sacrifice  of 
property;  that  executors  were  entitled  to  exercise  a  reasonable  discretion 
according  to  the  circumstances  of  the  particular  case.  The  will  bad 
directed  the  trustees  to  convert  "  with  all  convenient  speed,"  but  this, 
observed  his  lordship,  was  the  ordinary  duty  implied  in  the  office  of 
every  executor.  TA 

Money  outstanding  upon  good  mortgage  security  an  executor  is  not 
r:^ooQ-|  called  upon  to  realise  until  it  be  wanted  in  the  course  of  '''admin- 
L  '  -I  istration.(m)  "  For  what,"  said  Lord  Thurlow,  "  is  the  execu- 
tor to  do  ?  Must  the  money  lie  dead  in  his  hands,  or  must  he  put  it  out 
on  fresh  securities  ?  On  the  original  securities  he  had  the  testator's  con- 
fidence for  his  sanction,  but  on  any  new  securities  it  will  be  at  his  own 

V.  Gould,  4  Y.  &  C.  221  ;  and  see  Attorney-General  v.  Higham,  2  Y.  &  C.  Ch. 
Ca.  634.  ^  ^        ' 

[e]  Powell  V.  Evans,  5  Ves.  839;  Bullock  v.  Wheatley,  1  Coll.  130;  and  see 
Tebbs  v.  Carpenter,  1  Mad.  298 ;  Clough  v.  Bond,  3  M.  &  Cr.  496. 

(/)  Lowson  v.  Copeland,  supra. 

{g)  Bailey  v.  Gould,  4  Y.  &  C.  226,  per  Baron  Alderson. 

{h)  Styles  v.  Guy,  1  Mac.  &:  Gor.  422. 

[i]  Styles  v.  Guy,  1  Mac.  &  Gor.  428 ;  and  see  Scully  v.  Delany,  2  Ir.  Eq.  Rep.  1G5. 

[k)  Clack  V.  Holland,  19  Beav.  262  ;  Maitland  v.  Bateman,  16  Sim.  233,  note. 

(0  Buxton  V.  Buxton,  1  M.  &  C.  80;  Hughes  v.  Empson,  22  Beav.  181. 

{m)  Orr  v.  Newton,  2  Cox,  2T4  ;  and  see  Howe  v.  Earl  of  Dartmouth,  T  Ves.  150. 


DUTIES  OF  TRUSTEES  OF  CHATTELS  PERSOXAL.  305 

peril."(?i)     But  the  trustee  is  bound  to  ascertain  that  there  is  no  reason 
to  suspect  the  goodness  of  the  security. (o) 

When  the  property  is  reduced  into  possession  by  actual  payment,  as 
both  trustees  cannot  receive,  but  both  must  join  in  signing  the  receipt, 
the  money  may  be  paid  to  one  without  responsibility  on  the  part  of  the 
other.  But  a  trustee  will  not  be  justified  in  allowing  the  co-trustee  to 
retain  the  money  in  his  hands  for  a  longer  period  than  the  particular 
circumstances  of  the  case  may  necessarily  require.  And,  indeed,  the 
safer  course,  where  practicable,  is,  that  the  money  should  not  be  handed 
to  either  of  the  trustees  personally,  but  should,  in  the  first  instance,  be 
paid  into  some  bank  of  credit  to  their  joint  account. (p) 

The  powers  of  trustees  to  sign  receipts  will  be  considered  more  at 
large  hereafter,  but  we  may  here  observe  that  if  money  be  payable  to  A., 
who  is  simply  a  trustee  for  B.,  it  would  clearly  be  a  breach  of  trust  to 
pay  it  to  the  trustee  against  the  wishes  of  the  cestui  que  trust  ;(</)  on  the 
other  hand,  if  the  nature  of  the  trusts  be  such  that  the  person  having 
the  money  in  his  hands  could  not  reasonably  be  expected  to  see  to  the 
application,  he  may  pay  safely  to  the  trustee. (y)  Some  recent  cases  in 
Ireland  have  gone  further,  and  taken  a  distinction  between  moneys 
being  pure  personalty  and  moneys  payable  on  sales  or  mortgages.  Thus 
where  the  owner  of  a  policy  assigned  it  to  a  trustee  for  a  minor  without 
a  power  of  signing  receipts,  the  master  of  the  rolls  expressed  an  opinion 
(for  a  decision  was  not  then  called  for,)  that  if  the  insurance  company 
were  released  from  the  debt  by  the  person  to  whom  they  were  liable  at 
*law,  and  whom  the  owner  of  the  policy  had  constituted  the  pj^oqin 
trustee  of  it,  they  would  not  be  answerable  in  equity  for  the  exe-  L  J 
cution  of  the  trusts,  and  he  did  not  understand  how  the  rules  applicable 
to  purchasers  of  real  property  could  be  extended  to  debtors  so  as  to  impli- 
cate them  in  trusts  created  by  their  creditors. (s)  And  in  another  caseJi) 
where  the  insurer  efi'ected  a  policy  in  7001.,  and  then  assigned  it  to  a  trus- 
tee to  pay  400?.  to  one,  and  300?.  to  another,  without  an  express  power 
of  signing  receipts,  and  a  bonus  of  33?.  was  added  to  the  policy,  and  the 
insurer  being  dead  without  a  personal  representative,  and  one  of  the  cestuis 
qiie  trust  heiugaho  dead  without  a  sufiicieut  personal  representative,  and 
the  other  cestui  que  trust  being  in  America,  the  company  instituted  an 
interpleader  suit, — the  Lord  Chancellor  of  Ireland  laid  down  the  same 
distinction  as  the  master  of  the  rolls  between  a  personal  debt  and  money 
arising  out  of  real  estate,  and  held  that  the  trustee  could  sigu  a  dis- 
charge, and  that  the  interpleader  suit  could  not  be  sustained.  In  the 
case  of  a  debt,  he  said,  the  person  indebted  was  bound  and  compellable 
to  pay  to  some  one ;  but  in  the  case  of  realty,  the  purchaser  or  mortga- 
gee was  a  voluntary  intervenient,  and  could  pay  or  not  at  his  own  free 
will.  The  decision  of  the  lord  chancellor  may  have  been  correct,  for 
the  circumstance  ot  one  cestui  que  trust  being  abroad,  and  the  other  dead 

(n)  Orr  v.  Newton,  2  Cox,  276. 

(o)  See  Ames  v.  Parkinson,  7  Beav.  384. 

(p)  See  post,  pp.  332,  333.  {q)  Pritchard  v.  Langher,  2  Vera.  197. 

M  Glynn  v.  Locke,  3  Dm.  &  War.  11. 

(«)  Fernie  v.  Maguire,  6  Jr.  Eq.  Rep.  137. 

(t)  Ford  V.  Ryan,  4  Ir.  Ch.  Rep.  342. 


306       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

without  a  personal  representative,  as  was  also  the  insurer  himself,  may 
have  justified  the  company  in  paying  to  the  trustee,  but  the  principles 
laid  dowu  went  far  beyond  any  previous  authority,  and  it  remains  to  be 
seen  whether  they  will  be  adopted  by  the  English  courts.  In  the  mean 
time  the  suggested  distinction  between  pure  personalty  and  money  raised 
out  of  realty  cannot  be  relied  upon. 

Where  the  holder  of  the  money  knows  that  the  trustee  intends  to  com- 
mit a  breach  of  trust,  it  would  not  be  safe  to  pay  to  the  trustee,  whether  he 
has  an  express  power  of  signing  receipts  or  not.  But,  of  course,  the  fact 
of  such  knowledge  must  be  brought  home  to  the  person  paying,  so  as  to 
make  himpar^/ce/JS  criminisj  a  privy  to  the  fraud. (■?*) 


[*332]  *SECTION  II. 

OF   THE   SAFE   CUSTODY   OF   THE   CHATTEL. 

Lord  Northington  once  observed,  "No  man  can  require  or  with  reason 
expect  that  a  trustee  should  manage  another's  property  with  the  same 
care  and  discretion  that  he  would  his  own;(y)  but  the  maxim  has  never 
failed,  as  often  as  mentioned,  to  incur  strong  marks  of  disapprobation, 
A  trustee  is  called  upon  to  exert  precisely  the  same  care  and  solicitude 
in  behalf  of  his  cestui  que  trust  as  he  would  do  for  himself;  but  greater 
measure  than  this  a  court  of  equity  will  not  exact.(i<.') 

A  trustee,  in  an  old  case,  had  kept  40/.  of  trust  money  in  his  house, 
and  200?.  belonging  to  himself,  and  was  robbed  of  both  by  his  servant, 
and  was  held  not  to  be  responsible. (a-)  An  administratrix  had  left  goods 
with  her  solicitor  to  be  delivered  to  the  party  entitled.  The  articles  were 
stolen,  and  the  court  said  it  was  the  same  as  if  they  had  been  in  the  cus- 
tody of  the  administratrix,  and  it  was  too  hard  to  charge  her  with  the 
loss.(y) 

An  executor  has  been  held  not  to  be  answerable  for  having  omitted  to 
insure  leasehold  premises  against  fire.(^) 

If  the  subject  of  the  trust  be  money,  it  may  safely  and  most  properly 
be  deposited  for  temporary  purposes  in  some  responsible  banking-house  ;(a) 

{u)  See  Fernie  v.  Maguire,  G  Ir.  Eq.  Rep.  137. 

[v]  Harden  v.  Parsons,  1  Ed.  148. 

(«')  Morley  v.  Morley,  2  Ch.  Ca.  2,  per  Lord  Nottingham  ;  Jones  v.  Lewis,  2 
Ves.  241,  per  Lord  Hardwicke ;  Massey  v.  Banner,  1  Jac.  &  Walk.  24Y,  per  Lord 
Eldon;  Attorney-General  v.  Dixie,  13  Ves.  534,  jser  eundem. 

(x)  Morley  v.  Morley,  ubi  supra:  and  see  Jones  v.  Lewis,  2  Yes.  241 ;  Ex  parte 
Belchier,  Amb.  220  ;  Ex  parte  Griffin,  2  GL  &  J.  114. 

(y)  Jones  v.  Lewis,  2  Ves.  240. 

[z)  Bailey  v.  Gould,  4  Y.  &  C.  221 ;  and  see  Ex  parte  Andrews,  2  Rose,  410; 
Dobson  T.  Land,  8  Hare,  216. 

(«)  Rowth  V.  Howell,  3  Ves.  565 ;  Jones  v.  Lewis,  2  Ves.  241,  per  Lord  Hard- 
wicke; Adams  v.  Claxton,  6  Ves.  226;  Ex  parte  Belchier,  Amb.  219,  per  Lord 
Hardwicke;  Attorney-General  v.  Randall,  21  Vin.  Ab.  534,  per  Lord  Talbot; 
Massey  v.  Banner,  1  Jac.  &  Walk.  248,  per  Lord  Eldon ;  Horsley  v.  Chaloner,  2 
Ves.  85,  per  Sir  J.  Strange;  France  v.  Woods,  Taml.  172;  Lord  Dorchester  v. 
Earl  of  Effingham,  id.  279  ;  Freme  v.  Woods,  Taml.  172  ;  Johnson  v.  Newton,  11 
Hare,  IGO;  Wilks  v.  Groom,  3  Drewry,  584. 


DUTIES    OF    TRUSTEES    OF    CHATTELS    PERSONAL.     307 

but  the  trustee  will  make  himself  ^liable  for  the  failure  of  the  r:i;OQQ-i 
bank,  if  he  pay  the  money  to  his  own  credit  and  not  to  the  sepa-  L  "^  '  J 
rate  account  of  the  trust  estate,  (a) 

Thus  a  receiver  transmitted  two  bills  to  a  banker  to  be  placed  to  his 
account,  and  in  each  bill  the  receiver's  own  money  was  mixed  up  with 
the  trust-fund.  The  bank  failed,  and  Lord  Eldon  decreed  the  receiver 
to  make  good  the  loss.  "  A  receiver,"  he  said,  "  cannot  be  allowed  to 
say  he  is  transmitting  the  money  of  the  estate  as  such,  if  he  permit  it  to 
stand  with  his  own  money  to  his  own  credit ;  for,  in  that  case,  if  any 
intermediate  failure  of  the  receiver  happen,  his  estate  gets  the  benefit  of 
the  remittance,  and  the  trust  estate  none.  Then,  on  the  failure  of  the 
bank,  I  will  not  permit  him  to  say  he  shall  not  suffer  the  loss,  but  the 
trust  estate  shall  suffer  it. (Jj) 

And  in  the  more  recent  case  of  Massey  v.  Banner,(c)  where  A.  and  B. 
were  trustees  for  creditors,  and  C.  acted  for  them  in  collecting  the  debtor's 
estate,  and  paid  the  assets  into  a  bank  to  his  own  account,  and,  on  the 
failure  of  the  bank,  A.  and  B.  filed  a  bill  against  C.  to  compel  him  to 
account  for  the  loss,  Lord  Eldon  said,  "  C.  is  liable  in  the  same  manner 
as  other  persons  acting  as  trustees,  executors,  receivers,  or  assignees ;  and 
the  principle  applying  to  all  these  classes  of  persons  is  properly  expressed 
in  these  terms — That  the  court  does  not  expect  them  to  take  more  care 
of  the  property  entrusted  to  them  than  they  would  do  of  their  own.  If 
a  receiver  of  the  court  undertake  to  receive  rents  in  the  country  he  can- 
not send  them  in  cash,  and  if  he  collect  them  in  paper,  taking  the  same 
care  with  respect  to  it  as  a  reasonable  attention  to  his  own  afiairs  would 
dictate  to  him  if  it  was  for  himself,  if  he  remits  what  he  has  collected  by 
the  best  bills  he  can  find  by  the  same  means  that  would  be  reasonable  if 
it  were  on  his  own  account,  then  I  should  say  that  it  would  be  very  dif- 
ficult to  charge  him,  for  he  has  done  the  best  he  could  for  his  employers. 
But  I  cannot  persuade  myself  that  the  principle  is  satisfied,  unless  the 
result  is  as  beneficial  to  them  as  it  *would  be  to  himself.  If  an  p:i<qq4-| 
assignee  pays  money  into  his  banker's  hands  as  money  belonging  L  -I 
to  the  estate,  and  the  banker  fails,  the  assignee  is  undoubtedly  clear  from 
the  loss ;  but  if  instead  of  distinguishing  it,  he  pays  it  all  into  his  own 
account,  then  it  is  his  account  there ;  there  is  nothing  like  a  declaration 
of  trust  of  it,  and  it  is  familiar  to  consider  him  as  having  it  in  the 
banker's  hands  for  himself,  making  him  liable  for  it,  and  charging  him 
with  interest  at  the  rate  (since  the  late  statute)  of  201.  per  cent.  This 
is  because,  if  he  had  become  bankrupt,  it  would  have  gone  to  the  credit 
of  his  estate ;  for  it  is  clear  in  that  case,  that,  if  the  bankers  had  any 
account  with  him  by  way  of  set-off,  that  set-oif  would  aft'ect  equally  his 
money  and  the  money  of  the  estate  paid  in  to  his  account;  they  have  no 
notice  that  it  belongs  to  the  estate :  the  account  is  between  him  and 
them.     The  same  has  been  the  case  with  executors  and  trustees ;  and 

(a)  Wren  v.  Kirton,  11  Ves.  311;  Fletcher  v.  Walker,  3  Mad.  73;  Macdonnuell 
V.  Harding,  1  Sim.  1V8  ;  Matthews  v.  Brise,  6  Beav.  239. 

(b)  Wren  v.  Kirton,  11  Vesey,  380. 

(c)  1  Jac.  &  Walk.  241.  See  observations  of  L.  J.  K.  Bruce  and  L.  J.  Turner 
on  this  case;  Pennell  v.  Deffell,  4  De  Gex,  Mac.  &  Gor.  386,  392. 


308       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

I  apprehend,  tliat,  for  the  safety  of  mankind,  the  principle  must  be,  that, 
if  you  desire  to  deal  for  me  as  you  would  for  yourself,  it  must  be  so  that 
the  dealino-  for  me,  if  unfortunate,  shall  not  be  more  so  to  me  than  it 
would  have  been  to  you,  if  it  had  been  for  yourself.  In  the  case  of  the 
assio-nee  if  he  fails,  his  estate  has  all  the  benefit  of  the  money  :  the  par- 
ties for  whom  he  acts  have  none:  he  does  not  therefore  deal  for  them 
as  he  would  for  himself"  His  lordship  therefore  held  that  C.  was  re- 
sponsible. 

And  a  trustee  must  not  lodge  the  money  in  such  a  manner  as  to  put  it 
out  of  his  own  control,  though  it  be  not  under  the  control  of  another. 
White,  a  receiver  appointed  by  the  court,  in  order  to  induce  Adams  and 
Burlton  to  become  his  sureties,  entered  into  an  arrangement  with  them, 
that  the  rents,  as  received,  should  be  deposited  in  a  bank  in  the  joint 
names  of  the  sureties,  and  that  all  drafts  should  be  in  the  handicriting 
of  Anderson,  who  was  Adams's  partner,  and  should  be  signed  by  White. 
An  account  was  opened  upon  this  footing  :  the  bank  failed;  and  a  con- 
siderable loss  was  incurred.     Sir  J.  Leach  held  that  the  receiver  and  his 
sureties  were  not  to  be  answerable  ;(c7)  but  his  honor's  decision  was  re- 
versed  on  *appeal  by  the  lord  chancellor  ;(e)  and  this  reversal 
L         -I  was  afterwards  affirmed  on  the  final  appeal,  by  the  house  of 
lords. (/)     On  the  latter  occasion  Lord  Brougham  observed,  "  It  is  clearly 
the  duty  of  a  receiver,  as  an  officer  of  the  court,  to  keep  in  his  own  hands 
the  control  over  the  fund.     It  is  admitted,  that,  if  he  had  parted  alto- 
gether with  that  control,  he  would  have  been  answerable,  whether  the 
loss  actually   incurred  could  be  traced  to  and  connected  with  that  sever- 
ance and  that  want  of  power  over  the  fund  or  not.     Does  it  make  any 
difference,  that  instead  of  entlrehj  parting  with  the  control,  he  gave  a 
veto  on  all  his  dealings  with  it  to  a  mere  stranger  ?     Anderson  was  wholly 
unknown  to  the  court,  which  reposed  its  confidence  in  its  own  officer,  and 
looked  only  to  him :  the  acts  of  a  stranger  it  had  no  power  over,  and 
could  in  no  respect  control.     Consider  the  position  of  the  fund,  had  a 
sudden  run  come  upon  the  bank.     "N^Hiite,  on  hearing  it,  would  be  bound, 
in  the  discharge  of  his  official  duty,  instantly  to  draw  the  whole  balance, 
and  put  it  in  a  place  of  greater  safety ;  but  the  arrangement  which  he 
had  made  prevented  him  from  doing  this  without  the  concurrence  of 
Anderson,  who  lived  at  some  distance,  and  who,  even  had  he  lived  in 
the  same  town,  might  have  been  absent,  or  unable  from  illness  to  act, 
and  who,  had  he  been  both  on  the  spot  and  able  to  write  the  cheques, 
might  have  been  unwilling  and  refused.     He  might  have  been  disposed 
to  court  the  favour  of  his  bankers  at  the  risk  of  the  estate ;  he  might 
have  drawn  all  his  own  money  out  and  recompensed  the  banker  by  leav- 
ing that  of  the  receivership,  and  this  without  incurring  the  least  risk 
himself;  for  he  was  not  surety,  nor  in  any  way  bound  either  to  the  court 
or  the  receiver.     Let  us  ask  ourselves  how  any  individual  would  like, 
during  a  run  upon  his  banker,  to  have  his  hand  paralysed  by  such  a  veto 
as  was  given  to  Anderson  ?     What  anxiety  would  he  feel  during  the 
delay  that  must  elapse  in  the  interval  between  the  run  beginning  and  the 

{d)  Sal-svay  v.  Salway,  4  Russ.  60.  ie)  2  R.  k  M.  215. 

(/)  Id.  220.  ^  ' 


DUTIES    OF    mrSIEES    OF    CHATTELS    PERSONAL.    309 

messenger  returning  witli  tlie  cheques  filled  up  for  his  signature  I  Is  a 
receiver  entitled  to  place  the  custody  or  administration  of  the  fund  in  a 
situation  which,  in  the  case  of  any  individual  dealing  with  his  own  estate, 
would  *be  the  source  of  such  anxiety  ?  Xo  person  in  his  own  r-^nn(>n 
case  would  make  such  an  engagement  without  extreme  necessity  '-  -■ 
or  ample  equivalent ;  and  the  least  that  can  be  required  by  the  court  of 
its  ofiicers  is  that  degree  of  diligence  and  care  which  any  man  would  use 
in  the  conduct  of  his  own  affairs. "(^) 

In  a  case  before  Sir  A.  Hart,  in  Ireland,  an  executor  was  held  to  be 
justified,  though  he  had  placed  the  assets  in  a  bank  so  as  to  be  under 
the  control  of  the  co-executor.  The  money  was  entered  in  the  books  to 
the  Joint  account  of  the  co-executors,  but  the  bank  was  in  the  habit  of 
answering  the  cheques  of  either  co-executor  singly.  ''It  is  the  custom 
of  bankers,"  said  Lord  Chancellor  Hart,  "that  what  is  deposited  by  one 
to  the  joint  account  may  be  withdrawn  by  the  cheque  of  the  other;  and 
for  convenience  of  business,  it  is  necessary  this  risk  should  be  incurred, 
for  it  would  be  veiy  hard  to  transact  business  if  every  cheque  should  be 
signed  by  all  the  executors.  The  mode  in  which  the  account  has  been 
kept,  brings  it,  in  effect,  I  admit,  almost  to  the  same  thing  as  paying  it 
directly  to  the  co-executor;  but  each  executor  has  full  dominion  and 
may  deal  with  the  general  fund  as  he  thinks  proper,  without  making  his 
co-executor  chargeable  for  a  devastavit." (Ji^  However,  his  lordship 
admitted  that  "  if  there  were  any  fraud  or  collusion,  wilful  default,  or 
gross  neglect,  or  if  the  executor  had  any  reason  to  put  a  stop  to  the  mis- 
management by  the  co-executor,  the  case  would  be  altered." (?)  But 
even  with  this  qualification  the  doctrine  is  so  contrary  to  the  principle  of 
other  cases  that  no  trustee  or  executor  could  be  advised  to  rely  upon  it 
in  practice. (/r) 

The  trustee  will  also  be  answerable  for  the  failure  of  the  bank,  if  he 
deposited  the  money  there  for  safe  custody  when  it  was  his  clear  duty  to 
have  invested  it  in  the  funds  for  improvement,(/)  or  if  when  the  pur- 
poses of  the  trust  do  not  require  a  balance  to  be  kept  in  hand  he  lend  a 
sum  to  the  bank  at  interest  upon  no  other  security  than  their  notes,  for 
*this  in  effect  cannot  be  distinguished  from  an  oi'dinary  loan  |-:i..oo— i 
on  personal  security,  which  the  court  never  sanctions. (?«)  •-         -^ 

The  trustee  in  the  custody  of  the  trust  property,  wherever  it  may  be 
placed,  must  always  be  careful  not  to  amalgamate  it  with  his  own,  for, 
if  he  do,  the  cestui  que  trust  vfiW  be  held  entitled  to  every  portion  of  the 
blended  property  which  the  trustee  cannot  prove  to  be  his  own.(«) 

(g)  MS.  (A)  Kilbee  v.  Sneyd,  2  MoU.  1S6 ;  see  200,  213. 

(0  Id.  203,  213. 

(k)  See  Cloush  v.  Dixon.  8  Sim.  594;  3  M.  &  Cr.  490. 

{I)  Moyle  V.  Movie,  2  R.  &  M.  710  ;  Johnston  v.  Newton,  17  Jur.  826. 

(»?i)  Darke  v.  Martvn,  1  Beav.  525. 

{n)  Lupton  v.  Whi'te,  15  Yes.  432;  and  Panton  v.  Panton,  cited  ib.  440:  Ched- 
■K-orth  V.  Edwards,  8  Yes.  46  :  White  v.  Lincoln.  S  Yes.  363 :  Fellowes  t.  Mitchell, 
1  P.  W.  83  ;  Duke  of  Leeds  v.  Earl  Amherst,  20  Beav.  239. 


310  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 


SECTION  III. 

OF   INVESTMENT. 

Where  the  trust-money  cannot  be  applied,  either  immediately  or  by  a 
short  day,  to  the  purposes  of  the  trust,  it  is  the  duty  of  the  trustee  to 
make  the  fund  productive  to  the  cestui  que  trust  by  the  investment  of  it 
on  some  proper  security. 

It  was  the  opinion  of  Lord  Northington  that  a  trustee  might  be 
iustified  in  lending  on  personal  credit.  ^'The  true  touchstone,"  he  said, 
"  by  which  such  cases  are  to  be  tried  is,  whether  the  trustee  has  been 
guilty  of  a  breach  of  trust  or  not.  If  he  has  been  guilty  of  a  gross 
negligence,  it  is  as  bad  in  its  consequences  as  a  fraud,  and  is  a  breach  of 
trust.  The  lending  money  on  a  note  is  not  a  breach  of  trust,  without 
other  circumstances  crassce  ncgligentice." (o^  But  the  case  from  which 
this  dictum  is  taken  has  been  called  by  Lord  Eldon,  from  the  extraordi- 
nary doctrines  contained  in  it,  "  a  curious  document  in  the  history  of 
trusts ;"(p)  and  certainly  it  is  now  indisputably  settled  that  a  trustee 
cannot  lend  on  personal  security.(j)  *Lord  Hardwicke  said, 
L  J  "  a  promissory  note  is  evidence  of  a  debt,  but  no  scctirity  for 
it  ;"ir)  and  Baron  Hotham  observed,  that  '<  lending  on  personal  credit 
for  the  purpose  of  gaining  a  larger  interest  was  a  species  oi  gaming ;" {s) 
and  Lord  Kenyon  said,  that  «  no  rule  was  better  established  than  that  a 
trustee  could  not  lend  on  mere  pei-sonal  security,  and  it  ought  to  be  rung 
in  the  ears  of  every  one  who  acted  in  the  character  of  trustee. "(<)  And 
it  will  not  alter  the  case  that  the  money  is  lent  on  the  Joint  security  of 
several  obligors, (?/)  or  to  a  person  to  whom  the  testator  himself  had  been 
in  the  habit  of  advancing  money  on  personal  security .  (t') 

Of  course  a  trustee  may  lend  on  personal  security,  where  he  is  expressly 
empowered  to  do  so  by  the  instrument  creating  the  trust.(?(j)  But  no 
such  authority  is  communicated  by  a  direction  to  place  out  the  money  at 
interest  at  the  trustee's  discretionAx\  or  on  such  good  securitt/  as  the 
trustee  can  procure,  and  may  think  sa/e.M  And  if  joint  trustees  be 
empowered  to  lend  on  personal  security,  they  may  not  lend  to  one  of 

(o)  Harden  v.  Parsons,  1  Ed.  148.  (j>)  Walker  v.  Sjmonds,  3  Sw.  62. 

(q)  Adye  v.  Feuilleteau,  1  Cox,  24;  Darke  v.  Martyn,  1  Beav.  525;  Holmes  v. 
Bring,  2  Cox,  1;  Terry  v.  Terry,  Pr.  Ch.  2T3  ;  Ryder' v.  Bickerston,  cited  Harden 
v.  Parsons,  1  Ed.  149,  note  (a),  and  more  fully  Walker  v.  Symonds,  3  Sw.  80 
note  (a) ;  Vigrase  v.  Binfield.  3  Mad.  62  ;  Walker  v.  Symonds,  3  Sw.  63 ;  Anon 
case,  Lofft.  492 ;  Keble  v.  Thompson,  3  B.  C.  C.  112  ;  Wilkes  v.  Steward,  Coop.  6 
Clough  V.  Bond,  3  M.  &  Cr.  496,  per  Cur.;  and  see  Pocock  v.  Reddington,  5  Ves 
■799  ;  CoUis  V.  Collis,  2  Sim.  365  ;  Blackwood  v.  Borrowes,  2  Conn.  &  Laws.  477 
Watts  V.  Girdlestone,  6  Beav.  188. 

()•)  Ryder  v.  Bickerston,  cited  Walker  v.  Symonds,  3  Sw.  81,  note  (a). 

(s)  Adye  v.  Feuilleteau,  1  Cox,  25. 

{t)  Holmes  v.  Bring,  2  Cox,  1.  (u)  S.  C. 

(v)  Styles  V.  Guy,  1  Mac.  &  Gor.  423. 

(w)  See  Forbes  v.  Ross,  2  B.  C.  C.  430;  S.  C,  2  Cox,  113 

(x)  See  Pocock  v.  Reddington,  5  Ves.  794. 

(y)  Wilkes  v.  Steward,  Coop.  6 ;  Styles  v.  Guv,  1  Mac.  &  Gor.  422  ;  Attorney- 
General  V.  Higham,  2  Y.  &  C.  Ch.  Ca.  634  ;  and  'see  Mills  v.  Osborne,  7  Sim.  30 ; 
Westover  v.  Chapman,  1  Coll.  177. 


DUTIES    OF    TRUSTEES    OF    CUATTELS    PERSONAL.    gH 

themselves,  for  the  settlor  must  be  taken  to  rely  upon  tlie  united  vigilance 
of  all  the  trustees  with  respect  to  the  solvency  of  the  borrovjer.(^z^  And 
when  the  court  has  assumed  the  administration  of  the  estate  by  the 
institution  of  a  suit,  it  will  not  direct  an  investment  on  personal  security, 
though  there  be  a  power  to  lay  out  on  either  personal  or  government 
security,  but  will  order  all  future  investments  to  be  made  on  government 
security,  (a) 

And  where  the  trustees  of  a  sum  of  money  for  A.  for  life,  r:i;q9q-| 
^remainder  for  her  children,  were  authorized  by  the  settlement  L  J 
to  lend  the  trust  fund  upon  real  or  personal  security  as  should  be  thought 
good  and  sufficient,  and  the  trustees  lent  it  to  a  person  in  trade  whom 
A.  had  married,  and  the  money  was  lost,  they  wei-e  made  responsible 
for  the  amount.  Sir  William  Grant  said,  ''The  authority  did  not  extend 
to  an  accommodation :  it  was  evident  the  trustees  had,  upon  the  mar- 
riage, been  induced  to  accommodate  the  husband  with  the  sum,  which 
they  had  no  power  to  do." (6)  In  one  'case,  where  trustees  were  em- 
powered to  lend  money  to  the  husband  on  his  personal  security,  to  be 
used  by  him  in  business,  and  the  trustees  advanced  600/.  to  the  husband, 
and  he  became  insolvent,  and  the  trustees  received  a  dividend  of  70/., 
and  they  afterwards  lent  this  sum  to  the  husband  on  his  recommencing 
business  upon  the  security  of  his  bond,  and  the  money  was  lost,  it  was 
held  that  the  trustees  were  not  to  be  punished  for  the  discretion  they 
had  exercised,  for  it  did  not  follow,  that,  if  a  person  once  became  insol- 
vent, he  was  never  again  to  be  trusted. (e)  In  another  case,  however, 
where  a  trustee  was  required  at  the  request  of  the  wife  to  advance 
money  to  the  husband  upon  his  bond,  and  the  husband  took  the  benefit 
of  the  Insolvent  Act,  and  the  wife  requested  the  trustee  to  advance  80?. 
to  the  husband  upon  his  bond,  and  the  trustee  refusing,  the  wife  filed 
her  bill  to  have  the  trustee  removed,  the  court  said,  <'  that  so  total  a 
change  had  taken  place  in  the  circumstances  and  position  of  the  husband 
that  the  clause  in  question  became  no  longer  applicable  to  him  and 
ceased  to  have  any  eftect,  and  the  trustee  had  done  his  duty  when  he 
refused  to  lend  the  money.'' (c?) 

No  applications  from  cestuis  qxie  trust  to  their  trustees  are  so  frequent 
as  for  a  more  productive  investment  for  the  benefit  of  the  tenant  for  life. 
In  these  cases  the  trustees  must  remember  that  the  power  was  not  given 
them  for  the  purpose  of  favouring  one  party  more  than  another,  and 
that  if  they  lend  themselves  improperly  to  the  views  of  the  tenant  for 
life  *at  the  expense  of  the  remaindermen,  they  will  be  held  per-  r*3^Q-| 
sonally  responsible. (e) 

And  in  particular  where  there  is  the  ordinary  power  of  varying  secu- 
rities with  the  consent  of  the  tenant  for  life,  the  trustees  must  consider  the 
intention  to  be  that  as  the  control  is  given  to  the  tenant  for  life  for  his 

(z)  V.  Walker,   5  Russ.  7 ;    aud  see  Stickney  v.  Sewcll,  1  M.  &  C.  14 ; 

"Westover  v.  Chapman,  1  Coll.  111. 
(a)  Holmes  v.  Moore,  2  Moll.  328. 
(6)  Langston  v.  Ollivant,  Coop.  33. 
(c)  Burt  V.  Ingram,  July  15,  1835,  V.  C.  E.  MSS. 

{d)  Boss  V.  Godsall,  1  Y.  &  C.  Ch.  Ca.  617.     Compare  cases,  p.  349,  infranote  (b). 
(e)  Raby  v.  Ridehalgb,  1  Jur.  N.  S.  363 ;  and  see  Stuart  v.  Stuart,  3  Beav.  430. 


312       LEWIN  ON  THE  LAW  OP  TRUSTS,  ETC, 

protection,  so  the  trustees  have  a  discretion  reposed  in  them  for  the  pro- 
tection of  the  remaindermen.  Thus  the  power  would  not  authorise  a 
conversion  of  the  ti'ust  fund  from  three  per  cent,  consolidated  bank  annui- 
ties into  long  annuities,  for  though  the  tenant  for  life  would  improve 
his  income  the  capital  by  the  terminable  nature  of  the  security  would  be 
gradually  deteriorating ;(/)  nor  even  from  three  per  cent,  consolidated 
bank  annuities  into  three  and  a  quarter  per  cent,  bank  annuities,  or 
any  permanent  annuities  of  a  higher  rate,  for  the  latter  annuities  being 
more  likely  to  be  redeemed,  and  therefore  less  valuable,  the  gain,  however 
small,  of  the  tenant  for  life,  would  be  at  the  expense  of  the  remainder- 
men, (^r) 

All  the  conditions  annexed  to  the  power  must  be  strictly  observed,  as 
if  the  authority  be  to  lend  to  the  husband  icith  the  consent  of  the  icife, 
the  trustees  cannot  make  the  advance  on  their  own  discretion,  and  take 
the  consent  of  the  wife  at  a  subsequent  period. (/t) 

A  power  "  to  place  out  at  interest,  or  other  way  of  improvement,"  will 
not  authorise  an  investment  of  the  money  in  any  trading  concern  ;(«')  or 
in  fact  any  other  investment  than  a  government  or  real  security,(Z:)  but 
otherwise  it  seems  if  the  direction  be  not  to  "  invest"  but  to  "  employ" 
the  money,  which  has  been  thought  to  savour  of  a  trading  concern. 0 


[>^341] 


Upon  a  marriage  the  wife's  portion  was  settled  upon  the  in- 


tended husband  and  wife  for  their  respective  lives,  remainder  to 
the  issue,  and  a  power  was  given  to  the  trustees  to  "  call  in  and  lay  out 
the  money  at  greater  interest  if  they  could."  The  trustees  sold  out  stock 
to  the  amount  of  400^.,  and  laid  it  out  in  the  purchase  of  an  annuity  iox 
one  life,  and  had  the  life  insured.  Lord  Manners  said  the  purchase  of 
the  annuity  was  not  a  proper  disposition  of  a  trust-fund  settled  as  this 
was.(7H) 

If  trustees  be  authorised  to  invest  in  stock  or  real  security ,  and  they 
lend  on  personal  security,  and  the  money  is  lost,  they  shall  be  answera- 
ble, not  for  the  amount  of  the  stock  which  might  have  been  purchased, 
but  for  the  principal  money  lost,  for  if  real  security  had  been  taken,  the 
principal  only  would  have  been  forthcoming  to  the  trust,  and  the  want 
of  real  security  is  all  that  is  imputable  to  the  trustees.(n) 

A  trustee  may  not  invest  the  trust-fund  in  the  stock  of  any  private 

if)  Bate  V.  Hooper,  5  De  Gex,  Mac.  &  Gor.  338. 

{g)  In  reference  to  the  new  three  per  cent,  annuities  (formerly  three  and  a 
quarter  per  cent.,)  it  is  to  be  observed  that,  though  specially  exempt  from  further 
reduction  until  1874,  which  the  three  per  cent,  consols  are  not,  the  latter  are 
protected  by  a  legislative  provision  requiring  a  year's  notice  to  be  given  before 
redemption. 

(A)  Bateman  t.  Davis,  3  Mad.  98 ;  and  see  Cocker  v.  Quayle,  1  R.  &  M.  535 ; 
Norris  v.  Wright,  14  Beav.  303 ;  "Wiles  v.  Gresham,  2  Drewry,  258  :  5  De  Ges, 
Mac.  &  Gor.  T70.  j  J)         >  > 

(0  Cock  V.  Goodfellow,  10  Mod.  489. 

[k]  Dickenson  v.  Player,  C.  P.  Cooper's  Cases,  1837-8,  178.  (I)  S.  C. 

[m)  Fitzgerald  v.  Priugle,  2  Moll.  534. 

in)  Marsh  t.  Hunter,  6  Mad.  295;  Shepherd  v.  Mouls,  4  Hare,  500;  Rees  v. 
\MUiams,  1  De  Gex  &  Sm.  314;  Robinson  v.  Robinson,  1  De  Gex,  Mac.  &  Gor. 
i8«'  °''^"'^^^°g  Hockley  V.  Bantock,  1  Russ.  141;  Watts  V.  Girdlestone,  6  Beav. 
188,  Ames  V.  Parkinson,  7  Beav.  379. 


DUTIES    OF    TRUSTEES    OF    CHATTELS    PERSONAL.    313 

company  as  South  Sea  stock,  bank  stock/o)  &c.,  for  the  capital  depends 
upon  the  management  of  the  governors  and  directors,  and  is  subject  to 
losses.  The  South  Sea  company,  for  instance,  might  trade  away  their 
whole  capital,  provided  they  kept  within  the  terms  of  their  charter. (|)) 
"  Bank  stock,"  said  Lord  Eldon,  "  is  as  safe,  I  trust  and  believe,  as  any 
government  security ;  but  it  is  not  government  security,  and  therefore 
this  court  does  not  lay  out  or  leave  property  in  bank  stock ;  and  what 
this  court  will  decree  it  expects  from  ^trustees  and  executors."(2')  r-^o±(}-\ 
But  if  a  trustee  or  executor  make  the  mistake  of  investing  in  L  "'J 
bank  stock  instead  of  bank  annuities,  he  is  not  liable  for  the  actual  loss 
in  sterling  value,  but  only  for  the  excess  of  the  loss  beyond  that  which 
would  have  resulted  if  the  investment  had  been  made  in  bank  annui- 
ties. (?■) 

Where  a  trustee  was  authorised  to  invest  in  "  the  three  per  cent. 
consols,  or  three  per  cent,  reduced,  or  any  government  securities,"  the 
court  refused  to  allow  an  investment  on  exchequer  bills  as  not  within 
the  power. (s)  But  where  a  trustee  having  engaged  to  lend  a  sum  upon 
mortgage,  which  was  authorised  by  the  powers  of  the  will,  instead  of 
leaving  the  money  idle  at  his  banker's,  laid  it  out  in  exchequer  bills  as 
a  temporary  investment,  and  productive  of  interest  with  little  fluctuation 
of  value  during  the  interval  while  the  mortgage  was  in  preparation,  the 
court  held  that  such  a  dealing  with  the  fund  was  justifiable. (^)  And  it 
has  since  been  expressly  ruled  that  exchequer  bills  do  fall  within  the 
description  of  government  securites.^w) 

And  where  a  testator  directed  all  his  property,  except  ready  money 
or  moneys  in  ihQ  funds,  to  be  converted,  and  the  proceeds  to  be  invested 
in  three  per  cent,  consols  or  othei'  governvient  securities  in  England,  it 
was  held,  that  Greek  bonds,  though  guaranteed  by  this  country,  were 
not  comprehended  in  the  word  ^' funds,"  and  that  they  ought  to  be  con- 
verted, though  the  court  disavowed  any  intention  of  saying  that  bonds 
of  that  description  might  not,  in  other  cases,  be  deemed  government 
securities,  (v^ 

With  respect  to  investments  upon  mortgage  Lord  Harcourt  said, 

(o)  Hynes  v.  Redington,  1  Jones  &  Lat.  589 ;  7  Ir.  Eq.  Rep.  405. 

{p)  Trafford  v.  Boehm,  3  Atk.  440,  see  444 ;  Mills  v.  Mills,  7  Sim.  501 ;  Adie  v. 
Fennilitteau,  cited  Hancom  v.  Allen,  2  Dick.  499,  note ;  Emelie  v.  Emelie,  7  B.  P. 
C.  259.  The  reporter  speaks  in  the  last  case  of  South  Sea  annuities;  but  no 
doubt  the  investment  had  been  made  in  South  Sea  stock.  In  Trafford  v.  Boehm 
the  investment  had  been  in  South  Sea  stock,  but  the  reporter  cites  the  case  by  a 
similar  mistake  as  one  of  investment  in  South  Sea  annuities.  For  the  difference 
between  the  two,  see  Trafford  v.  Boehm,  3  Atk.  444.  Adie  v.  Fennilitteau,  or 
more  correctly,  Feuilleteau,  has  been  examined  in  the  registrar's  book,  but  the 
point  does  not  appear. 

{q)  Howe  V.  Earl  of  Dartmouth,  7  Yes.  150. 

(r)  Hynes  v.  Redington,  7  Ir.  Eq.  Rep.  405;  1  Jones  &  Lat.  589. 

(.s)  Ex  parte  Chaplin,  3  Y.  &  C.  397. 

(t)  Matthews  v.  Brise,  6  Beav.  239.  But  the  trustee  having  left  the  exchequer 
bills  in  the  hands  of  the  broker  for  more  than  a  year,  and  without  being  earmarked, 
and  the  broker  having  disposed  of  the  exchequer  bills  for  his  own  purposes,  and 
become  bankrupt,  the  trustee  was,  on  that  ground,  made  responsible  for  the  value 
of  the  bills  at  the  date  of  the  bankruptcy,  with  4  per  cent,  interest. 

(w)  Ex  parte  South  Eastern  Railway  Company,  9  Jur.  650. 

(y)  Burnie  v.  Getting,  2  Coll.  324.  ' 


314       LEW  IN  OX  THE  LAW  OF  TRUSTS,  ETC. 

"  The  case  of  an  executor's  laying  out  money  without  the  *in- 
[  ^"^  J  demnity  of  a  decree,  if  it  were  on  a  real  security  and  one  that 
there  ivas  no  around  at  the  time  to  suspect,  had  not  been  settled ;  but  it 
was  his  opinion  the  executor,  under  such  circumstances,  was  not  liable 
to  account  for  the  loss."(w)  And  Lord  Hardwicke,(a^)  and  Lord  Alvan- 
ley  (v)  appear  likewise  to  have  held  that  a  trustee  or  executor  would  be 
iustified  in  laying  out  the  trust-fund  upon  well  secured  real  estates.  But 
at  the  present  day,  when  there  is  such  a  facility  of  investing  upon 
o-overnment  security  through  the  medium  of  the  public  funds,  a  trustee 
or  executor  could  scarcely  be  advised  to  make  an  investment  upon  mort- 
gao-e  where  no  authority  was  expressly  given  him.  The  practice  of  the 
court,  which  ought  to  regulate  the  conduct  of  trustees,  is  now  clearly 
established.  Upon  application  to  Lord  Thurlow  to  have  part  of  a  luna- 
tic's estate  invested  upon  landed  security,  his  lordship  said,  "  Though  he 
felt  perfectly  convinced  by  what  was  stated  to  him,  that  the  security  was 
unexceptionable,  yet  he  would  not  permit  such  a  precedent  to  be  made. 
In  latter  times  the  court  had  considered  it  as  improper  to  invest  any  part 
of  the  lunatic's  estate  upon  pra^a^c  security."(2;)  And  Sir  John  Leach 
refused  a  similar  application  with  reference  to  the  money  of  infants,  at 
the  same  time  expressing  his  surprise  that  any  precedent  could  have 
been  produced  to  the  contrary. (a)  Where  there  was  no  power  of  invest- 
ing on  mortgage,  and  the  trustees  intending  to  invest  on  government 
securities,  afterwards,  at  the  instance  of  the  tenants  for  life,  and  to  pro- 
cure a  higher  rate  of  interest,  invested  on  mortgages  which  proved  defi- 
cient, they  were  liable  for  the  difference  to  the  cestui  que  trust  in  remain- 
der. The  ground  of  the  decision  was,  that  the  trustees  had  consulted  the 
benefit  of  the  tenants  for  life  at  the  expense  of  the  remainderman.  The 
r-KRlii  *court  gave  no  opinion  upon  the  dry  question,  whether  trustees 
L  J  without  a  power  could  safely  invest  on  mortgage,  but  did  not  en- 
courage the  idea  that  they  could. (A)  Of  course  trustees  would  not  be 
justified  in  lending  upon  mortgage,  when  they  are  directed  by  the  testator 
to  invest  exclusively  in  i\\Q  funds. {c^ 

Trustees  may  be,  as  they  generally  are,  expressly  empowered  to  invest 
on  real  security.  Where  this  is  the  case,  the  trustees  may  sell  out  three 
per  cent,  bank  annuities,  and  invest  the  proceeds  on  a  mortgage ;  for,  in 
this  case,  although  the  tenant  for  life  may  obtain  a  higher  rate  of  inter- 
est, yet  no  injury  is  done  to  the  remainderman,  as  the  capital  is  a  con- 
stant quantity,  and  if  the  tenant  live  long  enough,  he  himself  will  have 
the  benefit. 

Under  the  ordinary  power  of  varying  securities,  a  trustee  would  not  be 

(w)  Brown  T.  Litton,  1  P.  W.  141 ;  and  see  Lyse  v.  Kingdon,  1  ColL  188. 

{x)  Knight  V.  Earl  of  Plymouth,  1  Dick.  126. 

{y)  Pocock  v.  Reddington,  5  Ves.  800. 

(2)  Ex  parte  Cathorpe,  1  Cox,  182  ;  Ex  parte  Ellice,  Jac.  234. 

(a)  Norbury  v.  Norbury,  4  Mad.  191  ;  and  see  Widdowson  v.  Duck,  2  Mer.  494  ; 
Ex  parte  Ellice,  Jacob,  234  ;  Ex  parte  Fust,  1  C.  P.  Cooper,  T.  Cott.  157,  note  (e) ; 
Ex  parte  Franklyn,  1  De  Gex  &  Sm.  531;  Barry  v.  Harriot,  2  De  Gex  &  Sm. 
491 ;  Ex  parte  Johnson,  1  Moll.  128  ;  Ex  parte  Ridgway,  1  Hog.  309. 

(h)  Raby  v.  Ridehalgh,  1  Jur.  N.  S.  363. 

(c)  Pride  V.  Fooks,  2  Bear.  430;  Waring  v.  Waring,  3  Ir.  Ch.  Rep.  331. 


DUTIES  OF  TRUSTEES  OF  CHATTELS  PERSONAL,  315 

justified  in  lending  a  sum  of  stock  upon  a  mortgage  of  real  estate,  con- 
ditioned for  tlie  replacing  of  the  specific  stock  at  a  future  day,  and  the 
payment  of  half-yearly  sums  equal  to  the  dividends  in  the  mean  time. 
For  the  exercise  of  the  power  must  be  supposed  to  be  beneficial  to  the 
parties  interested,  or  some  of  them;  whereas,  in  this  case,  it  is  diffi- 
cult to  point  out  what  possible  advantage  can  accrue,  though  the  divi- 
dends be  repaid  and  the  stock  be  replaced.  Nothing  more  is  secured  to 
the  trust  than  would  have  been  by  the  effect  of  the  original  investment, 
had  it  remained  in  statu  quo  ;  while  a  government  security  is  changed 
for  the  risk  of  a  private  security,  and  perhaps  some  expenses  may  be  in- 
curred and  this  for  no  purpose.  In  short,  such  an  arrangement  would 
look  like  an  accommodation  to  some  friend,  rather  than  an  investment 
in  furtherance  of  the  trust. 

The  case  is  not  so  objectionable  when  the  stock  is  to  be  replaced,  and 
in  the  mean  time  interest  is  to  be  paid  on  the  amount  produced  by  the 
sale;  for  here  one  of  the  persons  whose  interest  is  to  be  consulted,  viz., 
the  tenant  for  life,  does  receive  a  benefit  in  pnesenti,  and  the  remain- 
derman, if  *he  outlive  the  tenant  for  life  and  the  mortgage  con-  r^o  i  r-i 
tinue  so  long,  will  derive  the  same  advantage.  L  '^'^''J 

When  trustees  propose  to  lend  upon  mortgage,  their  attention  should 
be  directed  to  two  leading  topics  of  inquiry;  viz.,  1.  The  sufficiency  of 
the  value  :  and  2.  The  title  of  the  borrower.(f?) 

They  must  be  careful  not  to  advance  more  than  two-thirds  of  the  actual 
value  of  the  estate,  if  it  he  freeJioM  land  ;(e')  or  if  the  property  consist 
oi  freehold  houses  they  should  not  lend  so  much  as  two-thirds,(/)  but  only 
half  of  the  actual  value. (r/)  The  rule,  however,  of  two-thirds,  or  one- 
half,  is  only  a  general  one ;  and  where  trustees  have  lent  on  the  security 
of  property  of  less  value,  but  have  acted  honestly,  they  have  been  pro- 
tected by  the  court,  and  have  even  been  allowed  their  costs.  (A)  As  to 
buildings  used  in  trade,  and  the  value  of  which  must  depend  on  external 
and  uncertain  circumstances,  trustees  would  not  be  justified  in  lending 
so  much  as  one-half. (A 

Trustees  are  also  precluded  from  lending  on  mortgage  to  one  of  them- 
selves ;(yt)  and  a  power  to  lend  on  real  securities  will  not  justify  a  loan 
upon  railway  mortgages,  for  how  is  the  value  to  be  ascertained  ?(/)  And 
where  trustees  are  empowered  to  lend  "  on  such  securities  as  they  should 
approve,"  they  are  still  bound  to  make  inquiries,  and  exercise  a  sound 
discretion  whether  the  securities  are  of  sufficient  value  ;(??<)  and  if  trus- 

(d)  See  Waring  v.  Waring,  3  Ir.  Ch.  Rep.  336. 

(e)  Sticknej^  v.  Sewell,  1  M.  &  C.  8  ;  Norris  v.  Weight,  14  Beav.  307  ;  Macleod 
V,  Annesley,  16  Beav.  600. 

(/)  Stickney  v.  Sewell,  Norris  v.  Wright,  ubi  supra ;  Phillipson  v.  Gatty,  7 
Hare,  516;  Drosier  v.  Brereton,  15  Beav.  221. 

(ff)  Stretton  v.  Ashmall,  3  Drew.  12  ;  Macleod  v.  Annesley,  16  Beav.  600. 

(h)  Jones  v.  Lewis,  3  De  Gex  &  Sm.  471.  Reversed  on  appeal,  it  is  believed, 
by  Lord  Truro,  on  Feb.  26,  1852,  but  on  what  grounds  not  known. 

(i)  Stickney  v.  Sewell,  1  M.  &  Cr.  8. 

{k)  Stickney  v.  Sewell,  ubi  supra  ;  and  see v.  Walker,  5  Euss.  7 ;  Francis  v. 

Francis,  5  De  Gex,  Mac.  &  Gor.  108. 

(l)  Mant  V.  Leith,  15  Beav.  525.  (m)  Stretton  v.  Ashmall,  3  Drewry,  10. 


316       LEWIX  ON  TUE  LAW  OF  TRUSTS,  ETC. 

tees  lend  on  any  irregular  securities^  the  onus  lies  on  the  trustees  to  show 
the  sufficiency  of  the  security.(n) 

*0f  course  where  trustees  and  executors  are  empowered  by  the 
L  '^^"J  ^iii  to  lay  out  the  money  upon  real  securities,  they  are  authorized 
in  continuing-  it  upon  existing  mortgages,  (o)  But  the  trustees  should 
make  inquiry  as  to  the  sufficiency  of  the  security. 

If  trustees  have  a  power  of  lending  to  three,  on  a  mortgage  of  their 
joint  interest  in  a  particular  property,  they  cannot  lend  to  two  of  them, 
thouo-h  the  two  maybe  able  to  pass  the  whole  interest.  Neither  can  the 
trustees  lend  to  the  three  without  taking  any  security  at  the  time  though 
after  an  interval  of  two  years  they  succeed  in  obtaining  the  security.  It 
is  no  excuse  to  say  that  the  delay  in  taking  the  security  did  not  occasion 
the  loss.  The  answer  is,  that  the  terms  of  the  power  were  not  complied 
with.(p) 

Though  trustees,  having  an  express  power,  may  without  risk,  if  upon 
a  proper  motive,  sell  out  bank  annuities  and  invest  the  proceeds  on 
mortgage;  yet,  where  the  court  has  had  the  administration  of  the  trust, 
it  has  refused  so  to  exercise  the  power,  as  a  measure  not  for  the  benefit, 
except  remotely,  of  those  in  remainder,  and  of  questionable  advantage  to 
the  tenant  for  life.(2') 

Road  bonds,  or  mortgages  of  the  tolls  and  toll-houses,  are  real  secu- 
rities, though  they  may  not  be  eligible  real  securities ;  and  if  a  testator, 
having  road  bonds,  empower  his  executor  to  leave  any  part  of  his  assets  on 
existing  "  real  securities,"  they  are  not  bound  to  call  in  the  road  bonds, 
but  may  exercise  a  discretion.  Trustees,  however,  might  not  be  justified 
in  lending  trust  money  on  road  bonds  as  an  original  investment. (?•) 

Where  trust-money  is  lent  upon  inortgage,  it  is  desirable  to  keep  the 
trust  out  of  sight,  that  when  the  money  is  paid  oif,  the  trust  deed  may 
not  become  an  essential  link  in  the  mortgagor's  title.  It  is  usual,  there- 
fore, to  insert  in  the  mortgage  deed  a  declaration,  that  the  money  ad- 
vanced belongs  to  the  trustees  (not,  however,  described  in  that  character, 
r*^i.7l  ^^*'  ^y  *iiame,)  on  a  joint  account,  and  that  the  receipt  of  the 
L  J  survivors  or  survivor,  his  executors  or  administrators,  shall  be  a 
sufficient  discharge ;  a  practice  which,  asshming  the  principle  deed  to 
confer  the  power  of  executing  the  trust  and  of  giving  receipts  on  the 
survivors  and  survivor,  his  executors  and  administrators,  does  not  seem 
open  to  much  objection,  and  has  received  the  sanction  of  frequent  usage. 
Any  declaration  of  trust  that  may  be  requisite  is  executed  by  a  separate 
deed.  By  this  method  should  the  mortgage  be  called  in  before  any 
change  of  trustees  occurs,  no  inconvenience  arises.  Upon  a  change  of 
trustees,  however,  the  difficulty  of  so  framing  a  transfer  to  them  of  the 
mortgage  as  not  to  disclose  the  trust  is  very  great.  Some  conveyancers, 
indeed,  treat  the  difficulty  as  insurmountable,  and  disclose  the  trust ; 
others  recite  in  the  transfer  an  actual  payment  of  the  mortgage  money 

(n)  Stretton  v.  Ashmall,  3  Drewry,  10. 

lo)  Angersteia  v.  Martin,  T.  &  R.  239 ;  Ames  V.  Parkinson,  V  Beav,  379. 
{p)  Fowler  v.  Reynal,  3  Mac.  &  Gor,  500 ;  2  De  G.  &  Sm.  749. 
(g-)  Barry  v.  Marriott,  2  De  Gex  &  Sm.  241. 
(r)  Robinson  v.  Robinson,  1  De  Gex,  Mac.  &  Gor.  447. 


DUTIES    OF    TRUSTEES    OF    CUATTELS    PERSONAL.     317 

by  the  new  trustees  to  the  old,  a  practice  open  to  the  objection  that  it 
involves  a  recital  absolutely  contrary  to  fact.  A  third  and  middle  course, 
frequently  adopted,  is  as  follows  :  A.  and  B.  being  appointed  new  trustees 
in  the  room  of  C.  and  D.,  the  recitals  omit  to  notice  the  appointment  of 
A.  and  B.  as  new  trustees,  and  merely  state  that  A.  and  B.  ''have 
become  entitled  to  the  mortgage,  and  required  C.  and  D.  to  convey  and 
assign  to  them."  But  this  last  method  is  by  no  means  free  from  diffi- 
culty. The  degree  of  inaccuracy  of  statement  is  perhaps  no  greater  than 
that  involved  in  the  original  joint  account  clause;  but  the  absence  of 
consideration  creates  embarrassment,  and  there  seems  room  for  conten- 
tion by  a  future  purchaser  of  the  mortgaged  estate  that  he  has  a  right  to 
know  how  A.  and  B.  became  entitled.  Another  mode  is  to  recite  that 
C  and  D.  are  possessed  of  the  mortgage  moneys  and  security  in  trust  for 
A.  and  B.  to  whom  the  same  belong  on  a  joint  account,  and  who  are 
desirous  of  having  the  same  vested  in  them  ;  a  method  affording  greater 
prospect  of  success  than  that  last  mentioned,  but  involving  at  the  same 
time  somewhat  more  divergence  from  the  real  facts. 

Where  trustees  are  expressly  authorized  to  lend  on  real  securities  in 
England,  Wales,  or  Great  Britain,  they  are  now  empowered  by  the  act 
of  parliament,  4  &  5  Gul.  4,  c.  29,  to  lend  on  real  securities  in  Ireland. 
But  the  second  section  *enacts  that  all  loans  in  which  any  mmor,  pjj^oj^Q-i 
unborn  child,  ov  person  of  unsound  mind  is  interested,  shall  be  L  J 
made  by  the  direction  of  the  Court  of  Chancery  or  Exchequer,  such 
direction  to  be  obtained  in  any  cause  o\'{s\  upon  petition  in  a  summary 
way.  And  the  fourth  section  provides,  that  every  such  loan  shall  be 
made  with  the  consent  of  the  person  or  persons,  if  any,  whose  consent 
may  be  required  as  to  the  investment  of  such  money  upon  real  securities 
in  England,  Wales,  or  Great  Britain.  And  by  the  fifth  section  it  is 
declared,  that  the  provisions  of  the  act  shall  not  apply  to  any  case  in 
which  the  trust  contains  an  express  restriction  against  investment  on 
securities  in  Ireland. 

Upon  an  application  to  the  court  under  this  act,  for  the  investment  of 
a  fund  in  court  upon  an  Irish  security,  the  master  of  the  rolls  refused 
even  a  reference  as  to  the  propriety  of  such  a  step ;  for  though  it  would  be 
beneficial  to  the  tenant  for  life  as  increasing  the  annual  produce,  it  was 
not  so  safe  a  security  as  regarded  the  remaindermen,  and  it  was  the  duty 
of  trustees  to  act  impartially  for  the  benefit  of  all  parties  alike. (?)  And 
Lord  Justice  Knight  Bruce,  when  vice-chancellor,  appears  to  have  enter- 
tained similar  views. (m)  But  such  an  order  had  been  made  by  the  vice- 
chancellor  of  England  ][v\  and  a  similar  order  was  afterwards  made  by  the 
lord  chancellor,  though  his  lordship's  attention  was  called  to  the  case  at 
the  rolls.  His  lordship  observed,  that  since  the  act  of  parliament,  Eng- 
land and  Wales  must,  for  the  purpose,  be  taken  to  include  Ireland ;  and 
that  the  parties  in  remainder  were  interested,  as  well  as  the  tenant  for 
life,  in  investing  the  money  upon  a  security  which  would  yield  a  higher 

(s)  Ex  parte  French,  7  Sim.  510. 
.   [t)  Stuart  V.  Stuart,  3  Bear.  430.  (m)  Kkkpatrick's  Trust,  15  Jurist,  941. 

\v)  Ex  parte  French,  7  Sim.  510. 

Februaky,  1858.— 21 


318       LEW  IN  ON  THE  LAW  OF  TRUSTS,  ETC. 

rate  of  interest,  for  if  it  remained  there  long  enough  they  would  have 
the  benefit  of  it.[io) 

If  the  consent  of  a  married  woman  be  required  by  the  trust,  and  the 
husband  and  wife  present  a  petition,  with  her  concurrence,  under  the 
act  this  does  not  fulfil  the  requisition  of  the  wife's  consent  to  the  invest- 
ment ;  for  when  the  husband  and  wife  join  in  any  legal  proceeding,  it  is 
not  the  act  of  the  *wife ;  and  whenever  she  is  to  be  bound,  it  is 
L  ^  "^J  necessary  that  she  should  appear  distinctly  and  separately  from 
the  husband. (x) 

Trustees  under  a  power  to  lend  on  mortgage,  ought  not  to  invest  on 
security  of  leaseholds  for  lives,  for  there  can  be  no  security  without 
resorting  to  a  policy  of  insurance,  and  then,  quafenus  the  policy,  they 
rely  upon  the  funds  and  credit  of  a  private  company.(?/)  This  remark, 
however,  does  not  apply  to  leases  for  lives  in  Ireland  renewable  for  ever, 
(where  the  power  authorises  an  investment  on  real  securities  in  Ireland;) 
but  the  trustees  must  not  advance  more  than  one-half  the  value  of  the 
property.(2;)  In  the  case  of  leaseholds,  the  lessee  generally  does  not  know 
the  lessor's  title ;  and  where  this  is  the  case,  it  is  an  additional  reason 
why  trustees  cannot  accept  the  security. 

Where  there  is  a  power  to  lend  on  mortgage,  there  may  be  no  objec- 
tion to  an  investment  on  long  terms  of  years,  at  a  pepper-corn  rent ;  but, 
as  to  leaseholds  of  short  duration,  and  incumbered  with  covenants  and 
clauses  of  forfeiture,  without  laying  down  the  rule  that  a  trustee  would 
not  be  justified  under  any  circumstances  in  lending  on  such  a  security, 
he  would  at  least  be  treading  on  very  delicate  ground,  and  the  onus 
would  lie  heavily  upon  him  to  make  out  the  perfect  property  of  the  in- 
vestment.(o)  If  the  trustees  be  authorised  and  required,  at  the  instance 
of  the  tenant  for  life,  to  invest  the  trust  fund  in  di  purchase  of  leaseholds, 
they  have  no  option  if  the  tenant  for  life  insist  upon  his  right. (6) 

If  a  power  be  given  to  invest  trust  money  in  a  purchase  of  lands,  or 
other  freehold  hereditaments,  a  trustee  may  no  doubt  purchase  an  estate 
with  a  suitable  house  upon  it;  but  it  is  conceived,  that  under  such  a 
power  trustees  ought  not  to  purchase  a  house  merely.  This  is  a  proper- 
ty of  a  wasting  nature  ;  and  although  the  tenant  for  life  might  be  bound 
to  keep  it  in  ordinary  repair,  he  could  not  be  compelled  to  preserve  it 
|-;;:r,/-n-i  *against  natural  decay.  It  is  clear  that  a  power  to  invest  in 
'-  ^  government  annuities  would  not  justify  the  purchase  of  long 
annuities;  and  there  is  a  similar  diiference  between  land  and  houses,  the 
former  being  worth  about  thirty  years'  purchase,  but  the  latter  much  less, 
so  that  the  tenant  for  life  would  be  benefited  at  the  expense  of  the  re- 
mainderman. 

Trustees  having  a  power  to  invest  in  a  purchase  of  copyholds  would 
not  be  justified  in  buying  copyholds  for  lives  only.(c) 

.    (w)  Ex  parte  Pawlett,  1  Phill.  STO.  {x)  Norris  v.  Norris,  14  Beav.  291. 

{y)  See  Lander  v.  Weston,  3  Drew.  389.      (z)  Macleod  v.  Annesley,  16  Beav.  600. 

(a)  See  Wyatt  v.  Sharratt,  3  Beav.  498;  Fuller  v.  Knight,  6  Beav.  209. 

{b)  Cadogan  v.  Earl  of  Essex,  2  Drewr.  227  ;  Beauclerk  v.  Ashburnhani,  8  Beav. 

(c)  Trench  v.  Harrison,  IT  Sim.  111.     N.  B.  The  words,  ^^  of  inheritance;'  in  the 

marginal  note,  do  not  occur  in  the  settlement  itself. 


DUTIES  OF  TRUSTEES  OF  CHATTELS  PERSONAL.  319 

Trustees  cannot  be  advised  to  make  advances  upon  a  second  mortgage, 
not  only  because  they  bave  neitber  tbe  legal  estate  nor  tbe  possession  of 
tbe  title  deeds,  but  also  because  they  may  be  placed  under  serious  diffi- 
culties by  tbe  acts  of  the  first  mortgagee.  If  he  file  a  bill  of  foreclosure, 
the  trustees  will  forfeit  their  interest  unless  they  redeem,  •which  they 
have  no  means  of  doing ;  and  if  the  first  mortgage  contain  a  power  of 
sale,  the  mortgagee  may  sell  the  property  at  a  great  disadvantage,  and 
the  trustees  cannot  prevent  it,  unless  by  redemption,  which  the  state  of 
the  trust  fund  may,  very  probably,  not  permit.(fZ) 

Of  course,  trustees  may  not  join  with  others  in  a  mortgage,  so  as  to 
mix  up  the  trust  fund  with  the  rights  of  strangers  ;  and  still  less  could 
they  take  a  joint  mortgage  in  the  name  of  a  common  trustee,  for  this 
would  be  also  a  delegation  of  their  duty. 

There  does  not  appear  to  be  any  absolute  objection  to  a  loan  by  trus- 
tees on  the  security  of  a  reversion;  but  they  should  be  careful,  in  such 
a  case,  not  to  advance  more  than  the  proper  proportion,  according  to  the 
nature  of  the  property,  of  the  present  value  of  the  reversion,  and  in 
taking  a  security  of  this  kind  a  full  power  of  sale  would  be  an  essential 
provision. 

Trustees  who  have  a  power  to  lend  on  real  securities,  may  not  lend  on 
personal  security  with  a  judgment  entered  up  against  the  borrower; 
though  by  the  1  &  2  Vict.  c.  110,  judgments  are  *made  a  charge  r^oci-i 
on  all  the  lands  of  the  debtor,  as  if  he  had,  by  writing  under  his  L  '"*'  J 
hand  agreed  to  charge  the  same.(e) 

When  trustees  propose  to  lend  on  mortgage,  they  should  be  careful 
not  to  part  with  the  money,  except  on  delivery  of  the  security ;  for,  of 
course  they  will  be  liable  for  all  the  consequences  if  they  sell  out  stock, 
and  allow  their  solicitor  or  agent  to  receive  the  money  on  his  representa- 
tion that  the  mortgage  is  ready,  and  it  afterwards  turns  out  that  the  pro- 
posed security  was  a  pure  invention,  and  that  the  money  has  been  mis- 
applied.(/) 

In  the  absence  of  any  express  power,  the  only  unobjectionable  invest- 
ment is  in  one  of  the  government  or  bank  annuities;  for  here,  as  the 
directors  have  no  concern  with  the  principal,  but  merely  superintend 
the  payment  of  the  dividends  and  interest  till  such  time  as  the  govern- 
ment may  pay  off  the  capital,  it  is  not  in  their  power,  by  mismanagement 
or  speculation,  to  hazard  the  property  of  the  shareholder. (y)  And  of 
the  government  or  bank  annuities,  the  one  which  the  court  has  thought 
proper  to  adopt  is  the  three  per  cent,  consolidated  bank  annuities,  the 
fund,  from  its  low  rate  of  interest,  the  least  likely  to  be  determined  by 
redemption. (7i)  Let  a  trustee  who  has  money  in  hand  which  he  ought 
to  render  productive,  invest  it  on  this  security,  at  the  same  time  execut- 

{d)  See  Norris  v.  Wright,  14  Beav.  308;  Robinson  v.  Robinson,  IG  Jur.  256; 
Drosier  v.  Brereton,  15  Beav.  226;  Waring  v.  Waring,  3  Ir.  Ch.  Rep.  337. 

[e)  Johnston  v.  Lloyd,  7  Ir.  Eq.  Rep.  252.  Decided  upon  the  corresponding 
enactment  in  the  Irish  Act,  3  &  4  Vict.  c.  105. 

(/)  Rowland  v.  Witherden,  3  Mac.  &  Gor.  568;  Hanbury  v.  Kirkland,  3  Sim. 
265. 

{g)  TrafFord  v.  Boehm,  3  Atk.  444,  per  Lord  Hardwicke. 

\h)  See  Howe  v.  Earl  of  Dartmouth,  7  Yes.  151.     See  too  p.  340,  supra  note  {g). 


320       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

in"'  a  declaration  of  trust,  that  in  the  event  of  his  bankruptcy  or  insol- 
vency the  fund  may  be  identified,  and  he  has  done  his  duty,  and  will 
not  be  answerable  for  any  subsequent  depreciation. (Q 

In  the  report  of  Hancom  v.  Allen(Z;)  it  is  said,  "The  trust 
L  '^'^"'J  money  had  been  laid  out  by  the  trustees  in  funds  which  sunk 
in  their  value,  without  any  mala  fides  ;  but  the  same  not  being  laid  out 
in  the  fund  in  which  the  court  directs  trust  money  to  be  laid  out,  the 
trustees  were  ordered  to  account  for  the  principal  and  pay  it  into  the 
bank,  and  then  that  it  should  be  laid  out  in  bank  three  per  cent,  annui- 
ties." It  might  be  inferred  from  this  statement,  that,  if  a  trustee  invest 
in  any  other  government  security  than  the  three  per  cent,  consols,  the 
court  would  hold  him  accountable  for  any  loss  by  a  fall  of  the  stock ; 
but  such  a  doctrine  would  be  extremely  severe  against  trustees,(A  and 
the  case  as  extracted  from  the  registrar's  book  is  no  authority  for  any 
such  proposition.  Thomas  Phillips,  a  trustee  of  1500/.,  instead  of  invest- 
ing the  money  in  a  purchase  of  land  and  in  the  mean  time  on  some 
sufficient  security,  as  required  by  the  trust,  had  advanced  it  to  his 
brother,  John  Phillips,  a  banker,  without  taking  any  other  precaution 
than  accepting  a  simple  acknowledgment  of  the  loan.  John  Phillips 
continued  to  pay  interest  upon  the  money  for  some  time,  but  eventually 
became  insolvent,  and  the  fund  was  lost.  The  court  under  these  cir- 
cumstances called  upon  the  trustee  to  make  good  the  amount.  The 
decision  was  reversed  in  the  house  of  lords,  perhaps  on  the  ground  of 
the  plaintiff's  acquiescence. (m)  A  trustee,  however,  must  confine  him- 
self to  government  securities ;  for  he  is  not  allowed  to  invest  even  on 
piMic  securities,  which  are  not  government  securities. («) 

Where  .sMcccsstte  estates  are  limited,  the  scale  should  of  course  be  held 
evenly  as  between  all  parties,  and  the  tenant  for  life  should  not  be 
allowed,  by  an  investment  on  a  security  less  safe  or  less  permanent  than 
the  usual  one,  and  therefore  yielding  to  the  present  holder  an  increased 
rate  of  interest,  to  advance  himself  at  the  expense  of  the  remainderman. 
Upon  this  principle,  if  a  testator's  estate  consist  of  bank  stock,  long 
annuities,  or  other  fund  either  not  a  government  security  or  not  of  the 
r;^or.3-i  most  permanent  character,  the  court,  as  soon  as  its  *observation 
L  J  is  attracted  to  the  circumstance,  invariably  directs  a  conversion 
of  such  estate  into  three  per  cent,  bank  annuities. (o)  Even  four  per 
cent,  and  five  per  cent,  bank  annuities,  as  more  liable  to  the  chance  of 

(t)  Bird  V.  Lockey,  2  Vern.  744,  4tli  point ;  Ex  parte  Champion,  cited  Franklin 
T.  Frith,  3  B.  C.  C.  434;  Powell  v.  Evans,  5  Yes.  841,  and  Howe  v.  Earl  of  Dart- 
mouth, 7  Ves.  150  ;  Knight  v.  Earl  of  Plymouth,  1  Dick.  126,  per  Lord  Hardwicke; 
Peat  V.  Crane,  cited  Hancom  v.  Allen,  2  Dick.  499,  note ;  Clough  v.  Bond,  3  M.  & 
C.  R.  496,  per  Lord  Cottenham;  Holland  v.  Hughes,  16  Ves.  114,  per  Sir  W. 
Grant;  Moyle  v.  Moyle,  2  R.  &  M.  716,  per  Lord  Brougham;  and  see  Jackson  v. 
Jackson,  1  Atk.  513. 
{k)  2  Dick.  498. 

[I)  See  Angell  v.  Dawson,  3  Y.  &  C.  316 ;  Ex  parte  a  projected  Railway,  11  Jur. 
160;  Matthews  v.  Brise,  6  Beav.  239  ;  Band  v.  Fardell,  1  Jur.  N.  S.  1214. 
(m)  7  B.  P.  C.  375. 

(n)  Sampayo  v.  Gould,  12  Sim.  435,  per  Sir  L.  ShadweU. 
o)  Howe>v.  Earl  of  Dartmouth,  7  Yes.  137,  and  the  cases  cited,  ib. ;  Mills  v. 
Mills,  7  Sim.  501 ;  Bate  v.  Hooper,  5  De  G.  M.  &  G.  338.     See  Pickering  v.  Picker- 
ing, 4  M.  &  Cr.  289. 


DUTIES  OF  TRUSTEES  OF  CHATTELS  PERSONAL.  321 

redemption,  are  ordered  to  be  similarly  converted.  (^)  It  follows  that 
trustees,  who  must  be  guided  by  the  conduct  of  the  court,  should,  where 
successive  interests  are  limited,  invest  in  the  three  per  cent,  bank 
annuities,  and  in  that  fund  exclusively. 

However,  when  the  trustees  were  directed  by  the  will  to  invest  "  on 
government  or  other  gcod  security,"  and  part  of  the  testator's  estate 
consisted  of  navy  five  per  cents.,  and  the  tenant  for  life  continued  to 
receive  the  dividends  for  more  than  thirty  years,  the  court  refused  to 
hold  the  trustees  liable,  for  not  having  converted  the  navy  five  per  cents, 
into  three  per  cent.  consols.(5')  Of  course,  where  the  fund  is  already 
invested  in  consols,  it  would  be  a  gross  breach  of  trust  to  sell  out  and 
invest  the  proceeds  in  an  irregular  fund,  as,  for  instance,  in  long 
annuities. Tr) 

Where  a  tenant  for  life  has  been  wrongly  in  possession  of  the  dividends 
of  a  stock  which  ought  to  have  been  converted,  he  will  be  accountable 
to  the  remainderman  for  the  excess  of  his  receipts  beyond  the  income 
he  would  have  received  had  the  fund  been  properly  invested. (s)  Should 
the  tenant  for  life  be  insolvent,  the  executors  of  the  testator  would  pro- 
hahly  be  decreed  to  make  compensation  to  the  sufi'ering  party ;  but  Lord 
Eldon  said,  he  would  not  state  what  the  court  would  do  in  such  a  case, 
for  it  depended  on  many  circumstances. (<)  In  the  subsequent  case  of 
Dimes  v.  Scott,(?^)  where  the  executors  were  expressly  directed  to  convert 
the  testator's  personal  *estate  into  money,  and  invest  the  pro-  r-jjioc^-i 
ceeds  in  government  or  real  securities  in  trust  for  A,  for  life,  L  J 
remainder  to  B.,  and  the  executors  for  eleven  years  permitted  A.  to 
receive  10  per  cent,  interest  upon  an  Indian  loan,  it  was  held  they  were 
chargeable  with,  the  difi'erence  between  the  10  per  cent,  interest  they 
had  wrongfully  paid,  and  the  interest  that  would  have  resulted  from  a 
conversion  into  three  per  cent,  consols  at  the  expiration  of  one  year 
from  the  testator's  decease. 

If  any  stock,  other  than  three  per  cent,  consols,  be  specifically 
bequeathed  to  A,  for  life,  remainder  to  B.,  in  that  case  the  court  has 
no  power  to  direct  a  conversion  into  three  per  cent,  consols  ;(i')  and  a 
power  of  varying  the  securities  expressly  given  to  the  executors  will 
make  no  difi'erence  in  this  respect,  for  the  testator  is  held  to  have  given 
them  the  authority,  not  with  the  intention  of  varying  the  relative  rights 
of  the  legatees,  but  merely  with  the  view  of  adding  security  to  the 
property,  (if) 

A  testator  gave  his  residuary  estate  to  executors  upon  trust  to  pay 

{p)  Howe  V.  Earl  of  Dartmouth,  7  Yes.  151,  per  Lord  Eldon  ;  Powell  v.  Cleaver, 
and  other  cases,  cited  id.  142. 

{q)  Band  v.  Fardell,  1  Jur.  N.  S.  1214. 

(r)  Kellaway  v.  Johnson,  5  Beav.  319. 

{s)  Howe  V.  Earl  of  Dartmouth,  7  Ves.  13Y,  see  150,  151;  Mills  v.  Mills,  ubi 
supra ;  and  see  Pickering  v.  Pickering,  4  M.  &  Cr.  289. 

{t)  See  Howe  v.  Earl  of  Dartmouth,  7  Ves.  150  ;  Holland  v.  Hughes,  16  Ves.  114. 

(m)  4  Russ.  195  ;  and  see  Mehrtens  v.  Andrews,  3  Beav.  72. 

(v)  Lord  V.  Godfrey,  4  Mad.  455  ;  Alcock  v.  Sloper,  2  M.  &  K.  699 ;  Collins  v. 
Collins,  ib.  703;  Bethune  v.  Kennedy,  1  M.  &  C.  114;  Vincent  v.  Newcombe,  1 
Younge,  599 ;  and  see  Pickering  v.  Pickering,  4  M.  &  Cr.  289. 

[w)  Lord  V.  Godfrey,  4  Mad.  455. 


322  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

the  annual  produce  to  A.  for  life  in  equal  portions  at  Lady-day  and 
Michaelmas-day,  and  after  his  decease  in  trust  for  other  purposes.  A 
motion  was  made  that  the  executors  might  invest  a  sum  in  their  hands 
in  the  three  per  cent,  bank  annuities,  but  it  was  objected  that  the 
dividends  of  this  stock  were  payable  in  January  and  July,  whereas,  if 
the  money  were  laid  out  in  the  three  per  cent,  reduced  annuities,  the 
dividends  would  be  payable  at  the  time  directed  by  the  testator ;  and 
Sir  John  Leach  made  the  order  accordingly. (.r) 

A  mortgage  may  produce  a  higher  rate  of  interest  that  an  investment 
in  the  three  per  cent,  consols ;  but  in  this  case  the  advantage  does  not 
arise  from  the  inferior  nature  of  the  security  as  in  the  instance  of  bank 
stock,  nor  from  any  perishable  or  redeemable  quality  as  in  the  instance  of 
the  long  annuities  or  the  four  per  cents. ;  the  court,  therefore,  will 
L  J  *not  permit  the  mortgage  to  be  called  in  without  a  previous 
inquiry  by  the  master  whether  it  will  be  for  the  benefit  of  all  the  parties 
interested,  (y) 

And  where  a  testator  dies  in  India,  and  neither  the  fund  nor  the  par- 
ties entitled  to  it  are  under  the  jurisdiction  of  the  court  of  chancery,  it 
is  not  the  duty  of  the  executor  to  transmit  the  assets  to  England  to  be 
invested  in  the  three  per  cent,  consols,  but  he  may  invest  the  property 
in  the  securities  of  the  East  India  Company,  and  the  tenant  for  life  will 
be  entitled  to  the  dividends  or  interest,  though  to  the  amount  of  10  or 
12  per  cent.  If  the  parties  return  to  England,  and  so  come  under  the 
jurisdiction  of  the  court,  the  fund  may  then  be  brought  over  at  the 
instance  of  the  remainderman,  and  the  tenant  for  life  must  submit  to 
the  consequential  reduction  of  his  income. (z) 

If  trustees  are  bound  by  the  terms  of  their  trust  to  invest  in  the^5Z(&- 
Uc  funds,  and  instead  of  so  doing  they  retain  the  money  in  their  hands^ 
the  cestuis  que  trust  may  clearly  elect  to  charge  them  with  the  amount  of 
the  money  or  with  the  amount  of  the  stock  which  they  might  have  pur- 
chased with  the  money,  (a)  And  as  the  court  expects  a  trustee,  where 
the  trust  is  of  a  permanent  character,  to  invest  the  fund  in  three  per 
cent,  bank  annuities,  even  though  the  settlement  contain  no  express 
direction  to  that  effect,  the  trustee,  if  he  improperly  retained  the  money 
in  his  hands,  would,  it  seems,  in  this  case  also  be  held  liable  at  the 
option  of  the  cestuis  que  trust  for  the  principal  sum  or  the  amount  of 
stock  which  it  would  have  purchased. (6) 

But  if  trustees  or  executors  be  directed  by  the  will  to  convert  the 
testator's  property  and  invest  it  in  government  or  real  securities,  it  was 
long  a  question  whether  they  should  be  answerable  for  the  principal 
money  with  interest,  or  the  amount  of  stock  which  might  have  been 
PS'iri  P^^*2^^^sed  at  the  period  when  the  conversion  should  have  been 
'-        -•  made,  and  subsequent  *dividends,  at  the  option  of  the  cestuis 

(a;)  Caldecottv.  Caldecott,  4  Mad.  189. 
[y)  See  Howe  v.  Earl  of  Dartmouth,  7  Ves.  150. 
{z)  Holland  v.  Hughes,  16  Ves.  Ill  ;  S.  C.  3  Mer.  685. 

(a)  Shepherd  v.  Mouls,  4  Hare,  504,  per  Sir  J.  Wigram ;  Robinson  v.  Robinson, 
1  De  Gex,  Mac.  &  Gord.  256,  per  Cur. 

{b)  Robinson  v.  Robinson,  1  De  Gex,  Mac.  &  Gor.  256,  per  Cur. 


DUTIES    OF    TRUSTEES    OF    CHATTELS    PERSONAL.    323 

q^ie  trust  ;(c)  or  whether  they  should  be  charged  with  the  amount  of 
principal  and  interest  only,  without  an  option  to  the  cestuis  que  trust  of 
taking  the  stock  and  dividends. ((i?)  It  has  now  been  decided  that  the 
trustee  is  answerable  only  for  the  principal  money  and  interest,  and 
that  the  cestuis  que  trust  have  no  option  of  taking  the  stock  and  divi- 
dends. The  principle  upon  which  the  court  proceeded,  was  that  the 
trustee  could  be  held  liable  only  for  not  having  done  what  it  was  his 
duty  to  have  done,  and  the  measure  of  his  responsibility  was  that  which 
the  cestuis  que  trust  must  have  been  entitled  to  in  whatever  mode  that 
duty  was  perforoied ;  that  the  trustee  might  have  discharged  his  duty 
without  purchasing  three  per  cent,  bank  annuities ;  that  the  trustee  was 
not  bound  retrospectively  to  have  exercised  the  discretion  one  way  or 
the  other,  but  was  answerable  only  for  the  consequences  of  not  having 
exercised  the  discretion  ;  that  to  compel  the  trustee  to  purchase  a  sum 
of  stock  because  the  price  had  since  risen,  was  to  regulate  the  liability 
by  an  accidental  or  subsequent  occurrence,  and  not  by  the  superiority  of 
the  stock  over  a  mortgage  at  the  time  when  the  investment  ought  to 
have  been  made.(e) 

If  the  trust-fund  be  standing  on  a  proper  security,  and  the  trustee 
call  it  in  for  no  purpose  connected  with  the  trust,  and  therefore  in  dere- 
liction of  his  duty,  or  for  a  purpose  not  authorised  by  the  terms  of  the 
trust,  he  will  be  compellable,  at  the  option  of  the  cestuis  que  trust,  either 
to  replace  the  specific  stock,  or  the  stock  into  which,  if  not  sold  out,  it 
would  have  been  converted  by  act  of  parliament, (/)  with  the  interme- 
mediate  dividends, ((/)  or  to  account  for  the  proceeds  of  the  sale(/t)  with 
'''interest  at  5  per  cent.(t)  And  the  breach  of  trust  will  not  be  r:):qp;7-i 
cured  by  a  subsequent  reinvestment  upon  the  trusts  of  the  stock  L  J 
unless  the  reinvestment  be  the  same  in  specie. (/.;)  But  in  a  case  where 
the  trustee  did  not  seek  to  make  any  thing  himself,  but  was  honourably 
unfortunate  in  having  yielded  to  the  importunity  of  one  of  the  cestuis 
que  trust,  it  was  held  by  Sir  A.  Hart,  that,  although  the  trustee  was 
bound  to  replace  the  specific  stock,  the  cestuis  que  trust  should  not  have 
the  option  of  taking  the  proceeds  with  interest.  (^)  If  the  trustee  become 
bankrupt,  the  cestuis  que  trust  may  at  their  option  prove  for  the  proceeds 

(c)  Hockley  V.  Bansock,  1  Russ.  141;  Watts  v.  Girdlestone,  6  Beav.  188;  Ames 
v.  Parkinson,  V  Beav.  379 ;  Ouseley  v.  Anstruther,  10  Beav.  456. 

{d)  Marsh  v.  Hunter,  6  Mad.  295;  Gale  v.  Pitt,  M.  R.  10  May,  1830:  Sheplierd 
V.  Mouls,  4  Hare,  500  ;  Rees  v.  Williams,  1  De  G.  &  Sm.  319. 

(e)  Robinson  v.  Robinson,  1  De  Gex,  Mac.  &  Gor.  247. 

(/)  Pbillipson  v.  Gatty,  7  Hare,  516;  Norris  v.  Wright,  14  Beav.  304,  305; 
Phillipo  V.  Mannings,  2  M.  &  Cr.  309. 

{g)  Davenport  v.  Staiford,  14  Beav.  335. 

(A)  Bostock  V.  Blakeney,  2  B.  C.  C.  653;  Ex  parte  Shakeshaft,  3  B.  C.  C.  197  ; 
O'Brien  v.  O'Brien,  1  Moll.  533,  per  Sir  A.  Hart;  Raphael  v.  Boehm,  11  Ves.  US, 
per  Lord  Eldon ;  Harrison  v.  Harrison,  2  Atk.  121 ;  Bate  v.  Scales,  12  Ves.  402  ; 
Phillipson  v.  Gatty,  7  Hare,  516;  Norris  v.  Wright,  14  Beav.  305;  Rowland  v. 
Witherden,  3  Mac.  &  Gor.  568  ;  Wiglesworth  v.  Wiglesvvorth,  16  Beav.  269. 

(«')  Crackelt  v.  Bethime,  1  J.  &  W.  586;  Mosley  v.  Ward,  11  Ves.  581 ;  Pocock 
V.  Reddington,  5  Ves.  794;  Piety  v.  Stace,  4  Ves.  620;  Jones  v.  Foxall,  15  Beav. 
392. 

(k)  Lander  v.  Weston,  3  Drew.  389. 

{I)  O'Brien  v.  O'Brien,  1  Moll.  533. 


394       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

with  interest,  or  for  the  price  of  the  specific  stock  at  the  date  of  the 
commission. (m) 

If  trustees  are  under  an  obligation  to  invest  in  the  funds,  and  they 
pay  the  money  into  a  bank  with  a  direction  to  lay  it  out  in  bank  annui- 
ties, and  the  bankers  neglect  to  do  it,  and  the  trustees  make  no  inquiry 
for  five  months,  and  the  bankers  fail,  the  trustees  are  answerable  for  the 
money  or  the  stock  at  the  option  of  the  cestuis  que  trust.(n) 

Trustees  would  not  be  justified  in  making  any  investment  that  would 
subject  the  trust-money  to  the  power  or  control  of  any  07ie  of  the  trustees 
sinsly  ;  they  could  not,  for  instance,  lay  out  the  fund  upon  India  bills 
(supposing  such  a  security  were  warranted  by  the  settlement,)  if  made 
payable,  not  to  all  the  trustees  in  their  joint  capacity,  but  to  one  of  the 
trustees  individually,  (o) 

Attorneys  and  solicitors  employed  in  negotiating  a  loan  of  trust-moneys, 
may  not  be  liable  for  a  breach  of  trust  if  they  have  no  other  privity  with 
the  transaction  than  what  arises  from  their  professional  duties,  but  they 
will  be  deemed  trustees  *and  be  responsible  as  such  if  they 
L  -I  act  professionally  in  carrying  out  a  transaction  which  they  know 
to  be  a  breach  of  trust,  and  which  is  calculated  to  promote  their  own 
private  ends.(jj)  In  laying  out  trust-moneys,  trustees  would  do  well 
not  to  employ  the  same  solicitor  who  acts  for  the  borrower.  Besides  the 
inconveniences  that  arise  from  the  doctrine  of  implied  notice,  there  is  in 
this  case  such  a  conflict  of  duties  on  the  part  of  the  solicitor,  that  he 
cannot  adequately  represent  the  interests  of  both  lender  and  borrower. (5) 


SECTION  IV. 

LIABILITY   OP   TRUSTEES   TO   PAYMENT   OP   INTEREST. 

If  the  trustee  be  guilty  of  any  unreasonable  delay  in  investing  the 
fund  or  transferring  it  to  the  hand  destined  to  receive  it,  he  will  be 
answerable  to  the  cestui  que  trust  for  interest  during  the  period  of  his 
laches,  and  a  trustee  may  be  decreed  to  pay  interest  even  though  it  be 
not  prayed  by  the  bill,(/-j  and  will  be  liable  to  pay  personally  the  costs 
of  the  suit.M 

An  executor  should  discharge  the  testator's  liabilities  as  soon  as  he 
has  collected  assets  sufficient  for  the  purpose,  and  therefore  if  he  keep 
money  in  his  hands  idle,  when  there  is  an  outstanding  debt  upon  which 

(m)  Ex  parte  Shakeshaft,  3  B.  C.  C.  197  :  Ex  parte  Gurner,  1  Mont.  Deac.  &  De 
Gex,  49Y. 

(n)  Challen  t.  Shippam,  4  Hare,  555. 

(o)  Walker  v.  Symonds,  3  Sw.  1,  see  66 ;  and  see  Salway  v.  Salway,  2  R.  &  M. 
218  ;  Ex  parte  Griffin,  2  Gl.  &  J.  114 ;  Clough  v.  Dixon,  8  Sim.  594;  3  M.  &  C.  490. 

(p)  AUeyne  v.  Darcey,  4  Ir.  Ch.  Re.  199,  see  204,  208 ;  Fyler  v.  Fyler,  3  Beav. 

(?)  See  Waring  v.  Waring,  3  Ir.  Ch.  Re.  331. 

(4  Woodhead  V.  Marriott,  C.  P.  Coop.  Cases,  1837-38,  62  ;  Turner  v.  Turner,  1 

{s)  Tickner  v.  Smith,  3  Sm.  &  Gif.  42. 


DUTIES  OF  TRUSTEES  OF  CHATTELS  PERSONAL.  325 

interest  is  running,  lie  will  himself  be  charged  -with  interest  on  a  sum 
equal  in  amount  to  the  debt,  and  if  the  outstanding  debt  carry  interest 
at  5  per  cent.,  the  executor  -will  be  charged  with  interest  at  the  same 
rate.(i) 

After  payment  of  debts  and  legacies,  if  the  executor  or  administrator 
be  guilty  of  laches  in  accounting  for  the  surplus  ^estate  to  the  r^g^g-i 
residuary  legatee,(w)  or  next  of  kin,(i;)  he  will  be  charged  by  L  J 
the  court  with  interest  for  the  balance  improperly  retained,  whether  the 
prayer  of  the  bill  extend  to  it  or  not. (it)) 

And,  on  the  same  principle,  if  the  assignees  of  a  bankrupt  neglect  to 
pay  a  dividend  to  the  creditors, (x)  or  the  receiver  of  an  estate  do  not 
move  the  court  in  proper  time  to  have  the  rents  invested, (^)  they  will 
be  ordered  to  account  for  the  money  with  interest  from  the  time  the  breach 
of  duty  commenced. 

And  an  executor  or  other  person  cannot  excuse  himself  by  saying  that 
he  made  no  actual  use  of  the  money,  but  lodged  it  at  his  banker's,(z)  and 
to  a  separate  account,(a)  for  it  was  a  breach  of  trust  to  retain  the  money: 
he  was  bound  to  make  lijiroductive  to  the  cestui  que  trust. 

But,  where  an  executor  conceived  he  was  himself  entitled  to  the  resi- 
due, and  the  court  considered  his  claim  to  be  just  in  itself,  but  was  obliged 
from  a  particular  circumstance  in  the  case  to  give  judgment  against  him, 
it  was  thought  too  severe  to  put  him  in  the  situation  of  one  who  had  neg- 
lected his  duty,  and  the  demand  against  him  for  interest  was  consequently 
disallowed. (6) 

^Formerly,  indeed,  it  was  held  by  the  court,  that  an  executor  r^ogQ-i 
might  employ  the  assets  in  his  trade,  or  lend  them  upon  security,  L  J 
and  he  should  not  be  called  upon  to  account  for  the  profits  or  interest. (c) 
And  such  was  the  case  even  where  money  which  had  been  lent  by  the 

{t)  Dornford  v.  Dornford,  as  cited  in  Tebbs  v.  Carpenter,  1  Mad.  301 ;  Hall  v. 
Hallet,  1  Cox,  134;  Turner  v.  Turner,  1  J.  &  W.  39. 

(m)  Forbes  v.  Ross,  2  Cox,  113;  Seers  v.  Hind,  1  Ves.  jun.  294;  Younge  v. 
Combe,  4  Ves.  101;  Longmore  v.  Broom,  7  Ves.  124;  Rocke  v.  Hart,  11  Ves.  58; 
Piety  V.  Stace,  4  Ves.  620 ;  Ashburnliam  v.  Thompson,  13  Ves.  402  ;  Raphael  v. 
Boehm,  11  Ves.  92;  S.  C.  reheard,  13  Ves.  40T  ;  S.  C.  spoken  to,  13  Ves.  590; 
Dornford  v.  Dornford,  12  Ves.  127  ;  Franklin  v.  Frith,  3  B.  C.  C.  433 ;  Littlehalves 
V  Gascoyne,  3  B.  C.  C.  V3  ;  Newton  v.  Bennet,  1  B.  C.  C.  359;  Lincoln  v.  Allen, 
4  B.  P.  C.  553 ;  Crackelt  v.  Bethune,  1  J.  &  W.  586  ;  Tebbs  v.  Carpenter,  1  Mad. 
290 

(v)  Hall  V.  Hallett,  1  Cox,  134 ;  Perkins  v.  Baynton,  1  B.  C.  C.  315 ;  Stackpoole 
V.  Stackpoole,  4  Dow,  209,  see  224;  Heathcote  v.  Hulme,  IJ.  &  W.  122;  Holgate 
V.  Haworth,  17  Beav.  259. 

(w)  Hollingsworth  v.  Shakeshaft,  14  Beav.  492. 

(2-)  Treves  v.  Townshend,  1  B.  C.  C.  384;  In  re  Hilliard,  1  \es.  jun.  89. 

(/)  Foster  v.  Foster,  2  B.  C.  C.  616;  Hicks  v.  Hicks,  3  Atk.  274;  Hankey  v. 
Garret,  1  Ves.  jun.  236.  ^   ^       „     „ 

(z)  Younge  v.  Combe,  4  Ves.  101 ;  Franklin  v.  Frith,  3  B.  C.  C.  433;  Treves  v. 
Townshend,  1  B.  C.  C.  384;  In  re  Hilliard,  1  Ves.  jun.  89;  Dawson  v.  Massey,  1 
B.  k  B.  230;  Browne  v.  Southouse,  3  B.  C.  C.  107  ;  and  see  Rocke  v.  Hart,  11 
Ves.  60. 

(a)  Ashburnham  v.  Thompson,  13  Ves.  402. 

(b)  Bruere  v.  Pemberton,  12  Ves.  386.  But  see  Sutton  v.  Sharp,  1  Russ.  146; 
and  Turner  v.  Maule,  3  De  G.  &  Sm.  497. 

(c)  Grosvenor  v.  Cartwright,  2  Ch.  Ca.  21 ;  Linch  v.  Cappy,  2  Ch.  Ca.  35;  and 
see  Brown  v.  Litton,  1  P.  W.  140. 


326       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

testator  on  good  security  was  called  in  by  the  executor  for  tlie  express 
purpose  of  being  re-lent  by  himself.  The  executor,  it  was  argued,  was 
not  bound  to  lend  the  assets,  and  if  he  did  so,  it  was  at  his  peril,  and  he 
was  answerable  for  losses,  and,  if  accountable  for  any  loss,  he  was  surely 
entitled  to  any  gains.  («^)  But  Lord  North  overruled  the  doctrine  in  spite 
of  the  alleged  practice  of  the  court  for  the  last  twenty  years,  and  the 
authority  of  above  forty  precedents.  As  to  the  argument,  that,  if  the 
money  should  be  lost,  the  executor  would  be  personally  responsible,  his 
lordship  said,  it  was  very  well  known  that  a  man  might  insure  his  money 
at  the  rate  of  1  per  cent.(e) 

A  distinction  was  afterwards  taken  between  a  solvent  and  an  insolvent 
executor;  that  the  former,  as  he  might  suffer  a  loss,  should  take  the 
gain,  but  as  an  executor  who  was  insolvent  at  the  time  of  the  loan  could 
incur  no  risk  of  a  loss  personally,  he  should  not  be  allowed  to  take  to 
himself  any  benefit.  (/) 

And  Lord  Hardwicke  drew  another  distinction ;  that  if  an  executor 
had  -placed  out  assets  that  were  specifically  hequeathecl,  he  should  be 
made  to  account  for  the  interest,  but  the  master  was  never  directed  to 
charge  interest  upon  an  executor  who  made  use  of  general  assets,  come 
to  his  hands,  in  the  v:ay  of  his  trade.(g\ 

But  all  these  refinements  have  long  since  been  swept  away;(^)  and 
the  rule  is  now  universal,  that,  whether  the  executor  was  solvent  or  in- 
P^qp-i-i  solvent,  whether  the  money  was  part  of  *the  general  assets  or 
•-  J  specifically  bequeathed,  whether  lent  upon  security  or  employed 
in  the  way  of  trade,  the  executor  shall  account  for  the  utmost  actual  pro- 
fits to  the  testator's  estate. (i) 

And  where  the  money  has  been  employed  in  trade,  the  cestui  que  trust 
has  the  option  of  taking  the  actual  profits  or  of  charging  the  executor 
with  interest.(y)  And  an  executor  who  is  a  trader  is  considered  to  employ 
the  money  in  trade,  if  he  lodge  it  at  his  banker's,  and  place  it  in  his  own 
name,  for  a  merchant  must  generally  keep  a  balance  at  his  banker's,  and 
this  answers  the  purpose  of  his  credit  as  much  as  if  the  money  were  his 
own.^A:) 

The  rate  of  interest  with  which  an  executor  is  usually  charged  is  4  per 
cent.;(/)  but  the  rule  holds  only  where  it  does  not  appear  that  the  exe- 

{d)  See  Ratcliffe  v.  Graves,  2  Ch.  Ca.  152. 

(e)  Ratcliffe  v.  Graves,  1  Vern.  196  ;  S.  C.  2  Ch.  Ca.  152. 

(/)  Bromfield  v.  Wytherley,  Pr.  Ch.  505;  Adams  v.  Gale,  2  Atk.  106. 

(g)  Child  V.  Gibson!|  2  Atk.  603. 

[h)  As  to  the  former  distinction,  see  Newton  v.  Bennet,  1  B.  C.  C.  361  ;  Adye  v. 
Feuilleteau,  1  Cox,  25 ;  and  as  to  the  latter,  see  Newton  v.  Bennet,  1  B.  C.  C.  361. 

(i)  Tebbs  v.  Carpenter,  1  Mad.  304,  per  Sir  T.  Plumer  ;  Lee  v.  Lee,  2  Vern.  548 ; 
Adye  v.  Feuilleteau,  1  Cox,  24  ;  Piety  v.  Stace,  4  Ves.  622,  per  Lord  Alvanley. 

(./)  Heathcote  v.  Hulme,  1  J.  &  W.  122;  Anon,  case,  2  Ves.  630,  per  Sir  T. 
Clarke ;  Docker  v.  Somes,  2  M.  &  K.  655  ;  Ex  parte  Watson,  2  V.  &  B.  414 ; 
Brown  v.  Sansome,  1  M'Clel.  &  Y.  427 ;  Robinson  v.  Robinson,  1  De  Gex,  Mac.  & 
Gor.  257. 

{k)  Treves  v.  Townshend,  ubi  supra  ;  Moons  v.  De  Bernales,  1  Russ.  301 ;  In  re 
Hilhard,  1  Ves.  jun.  90  ;  Sutton  v.  Sharp,  1  Russ.  146  ;  Rocke  v.  Hart,  11  Ves.  61  ; 
but  see  Browne  v.  Southouse,  3  B.  C.  C.  107. 

(0  See  Forbes  v.  Ross,  2  Cox,  116;  Hall  v.  Hallet,  1  Cox,  138  ;  Tebbs  v.  Car- 
penter, 1  Mad.  306 ;  In  re  Hilliard,  1  Ves.  jun.  90  ;  Browne  v.  Southouse,  3  B.  C. 


DUTIES  or  TRUSTEES  OF  CHATTELS  PERSONAL.  327 

cutor  has  made  greater  interest,  for  the  court  invariably  compels  the 
executor  to  account  for  every  farthing  he  has  actually  received. (7?i) 

It  is  not  easy  to  define  the  circumstances  under  which  the  court  will 
charge  executors  and  trustees  with  more  than  4  per  cent,  interest,  or  with 
compound  interest,  and  the  principles  by  which  the  court  is  regulated  in 
so  doing  are  involved  in  much  uncertainty.  In  a  late  case,  the  rule  was 
thus  laid  down  by  the  present  master  of  the  rolls  :  <'If  an  executor  has 
retained  *balances  in  his  hands,  which  he  ought  to  have  invested,  r^opQ-i 
the  court  will  charge  him  with  simple  interest,  at  4  per  cent.  L  "J 
If,  in  addition  to  such  retention,  he  has  committed  a  direct  breach  of 
trust,  or  if  the  fund  had  been  taken  by  him  from  a  proper  state  of  in- 
vestment, in  which  it  was  producing  5  per  cent.,  he  will  be  charged  with 
interest  after  the  rate  of  5  per  cent,  per  annum.  If,  in  addition  to  this, 
he  has  employed  the  money  so  obtained  by  him  in  trade  or  speculation, 
for  his  own  benefit  or  advantage,  he  will  be  charged  either  with  the  pro- 
fits actually  obtained  from  the  uses  of  the  money,  or  with  interest  at  5 
per  cent,  per  annum,  and  also  with  yearly  rests,  that  is,  with  compound 
interest. "(n) 

The  previous  dicta  and  decisions  undoubtedly  seem  to  establish,  in 
accordance  with  the  views  just  quoted,  that  an  executor  will  be  charged 
with  interest  at  5  per  cent,  where  he  is  guilty,  not  merely  of  negligence, 
but  of  actual  corruption  or  misfeasance,  amounting  to  a  wilful  breach  of 
trust. (o)  But  in  a  recent  case  before  the  present  lord  chancellor,  his  lord- 
ship expressed  his  disapprobation  of  charging  the  executor  with  a  higher 
rate  of  interest  by  way  oi penalty,  and  stated  his  own  opinion  as  follows : 
"  What  the  court  ought  to  do,  I  think,  is  to  charge  him  only  with  the 
interest  which  he  has  received,  or  which  it  is  justly  entitled  to  say  he 
ought  to  have  received,  or  which  it  is  so  fairly  to  be  presumed  that  he  did 
receive  that  he  is  estopped  from  saying  that  he  did  not  receive  it.  I  do 
not  think  there  is  any  other  intelligible  ground  for  charging  an  executor 
with  more  interest  than  he  has  made,  than  one  of  those  I  have  mentioned. 
Misconduct  does  not  seem  to  me  to  warrant  the  conclusion  that  the  exe- 
cutor did  in  point  of  fact  receive,  or  is  estopped  from  saying  that  he  did 
not  receive,  the  interest,  or  that  he  is  to  be  charged  with  anything  he 
did  not  receive,  if  it  is  not  misconduct  contributing  to  that  r^ogg-i 
particular  result."(jj>)     The  particular  case  *before  his  lordship  L         J 

C.  107  ;  Mosley  v.  Ward,  11  Ves.  582  ;  Perkins  v.  Baynton,  1  B.  C.  C.  375  ;  Tre- 
ves V.  Townshend,  1  B.  C.  C.  386 ;  Hicks  v.  Hicks,  3  Atk.  274  ;  Younge  v.  Combe, 
4  Ves.  101 ;  Rocke  v.  Hart,  11  Ves.  58  ;  Hankey  v.  Garret,  1  Ves.  jun.  236  ;  but 
see  Bird  v.  Lockey,  2  Vern.  744,  4th  point;  Carmichael  v.  Wilson,  3  Moll.  79; 
Attorney-General  v.  Alford,  4  De  Gex,  Mac.  &  Gor.  843. 

(m)  Forbes  v.  Ross,  2  Cox,  116,  per  Lord  Tliurlow;  In  re  Hilliard,  1  Ves.  jun. 
90,j9er  eitndem;  Hankey  v.  Garret,  1  Ves.  jun.  239,  per  eundem ;  Brown  v.  Litton, 
10  Mod.  21,  per  Lord  Harcourt ;  Hall  v.  Hallet,  1  Cox,  138,  per  Lord  Thurlow. 

(n)  Jones  v.  Foxall,  15  Beav.  392. 

(o)  Tebbs  v.  Carpenter,  1  Mad.  306,  per  Sir  T.  Plumer;  Bick  v.  Motly,  2  M.  & 
K.  312;  Mousley  v.  Carr,  4  Beav.  53,  per  Lord  Langdale;  and  see  Crackelt  v.  Be- 
thune,  1  J.  &  W.  588  ;  Docker  v.  Somes,  2  M.  &  K.  G70  ;  Munch  v.  Cockerell,  5  M. 
&  Cr.  220 ;  but  see  Meader  v.  M'Cready,  1  Moll.  119. 

(p)  Attorney-General  v.  Alford,  4  De  Gex,  Mac.  &  Gor.  851,  852.  In  Mayor  of 
Berwick  v.  Murray,  March  7,  1857,  the  lord  chancellor  explained  that,  what  he 
thought  in  Attornev-General  v.  Alford  was,  "that,  although  there  had  been  great 


328       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

was  merely  one  of  omission  to  invest,  under  circumstances  of  gross  negli- 
gence;  and  it  is  conceived  that,  although  his  observations  cast  a  certain 
degree  of  doubt  over  the  class  of  authorities  last  referred  to,  they  cannot 
be  considered  as  overruled. 

Whether,  where  the  money  has  been  employed  in  trade,  simj^le  or 
compound  interest  shall,  as  a  general  rule,  be  charged,  is  a  point  upon 
which  the  decisions  are  at  conflict,  the  older  pointing  invariably  to  sim- 
ple interest  as  the  proper  measure  of  liability,  but  some  of  the  more 
recent  to  compound  interest.     Respecting  the  rate  of  interest  there  has 
been  no  conflict.     It  has  been  almost  invariably  held  to  be  5  per  cent.,(5') 
the  court  presuming  every  business  to  yield  a  profit  to  that  amount ; 
though  Lord  Thurlow,  in  one  case,  ofi'ered  an  inquiry  whether,  under 
the  circumstances,  such  a  rate  of  interest  might  not  be  too  high  ;{r)  and 
in  another,  where  an  executor  proved  extenuating  circumstances,  4  per 
cent,  only  was  charged. (s)     The  first  case  in  which  a  trustee  appears  to 
have  been  charged  with  compound  interest,  by  reason  only  of  his  having 
used  trust  money  in  trade,  appears  to  have  been  that  of  Walker  v.  Wood- 
ward. (<)     There  Lord  Gifi"ord — the  trustee  acknowledging  that  he  had 
made  great  profits,  though  he  could  not  furnish  the  particulars,  and  the 
cestui  que  trust  waiving  the  investigation  of  the  actual  gains — directed 
5  per  cent,  interest  to  be  charged  unth  annual  rests.     Subsequently  the 
late  vice-chancellor  of  England  refused  to  charge  a  trustee  of  a  charity 
estate,  who  had  used  the  trust  moneys  in  carrying  on  his  trade,  with 
compound  interest ;(«)  but  in  a  later  case.  Sir  John  Leach  charged  an 
executor  with  compound  interest  under  similar  circumstances,(i)  and  in 
the  two  latest  reported  decisions  on  the  subject,  the  present  master  of 
the  rolls,  in  accordance  *with  the  rule  laid  down  by  him  (as  be- 
L         -I  fore  stated,)  directed  an  account  with  rests. («?) 

Where  a  testator  expressly  directs  an  accumulation  to  be  made,  and 
the  executor  disregards  the  injunction,  it  seems  compound  interest  will 
be  decreed. (a;)  "Where  there  is  an  express  trust,"  said  Lord  Eldon, 
"to  make  improvement  of  the  money,  if  he  will  not  honestly  endeavour 
to  improve  it,  there  is  nothing  wrong  in  considering  him,  as  to  the  prin- 

misconduct  on  the  part  of  Mr.  A.,  in  not  communicating  to  the  proper  authorities 
the  fact  that  trust  moneys  had  come  to  his  hands,  yet  that  was  not  a  sort  of  mis- 
conduct which  enabled  him  (the  Lord  Chancellor)  to  charge  Mr.  A.  with  more 
than  the  ordinary  rate  of  interest."  Taken  from  short-hand  writer's  note  of 
judgment. 

(?)  Treves  v.  Townshend,  1  B.  C.  C.  384;  Rocke  v.  Hart,  11  Yes,  61,  per  Sir 
W.  Grant;  Heathcote  v.  Hulme,  1  J.  &  W.  122,  see  134;  Attorney- General  v. 
Solly,  2  Sim.  518  ;  Mousley  v.  Carr,  4  Beav.  53,  per  Lord  Langdale ;  Westover  v. 
Chapman,  1  Coll.  177  ;  Williams  v.  Powell,  15  Beav.  4G1 ;  Robinson  v.  Robinson, 
1  De  Gex,  Mac.  &  Gor.  257. 

(r)  Treves  v.  Townshend,  1  B.  C.  C.  384.     Sed  qusere. 
(s)  Melland  v.  Gray,  2  Coll.  295.  {t)   1  Russ.  107. 

[u)  Attorney-General  v.  Solly,  2  Simons,  518. 
{v)  Heighington  v.  Grant,  5  M.  &  Cr.  258  ;  2  Phil.  600. 

(w)  Jones  V.  Foxall,  15  Beav.  388  ;  Williams  v.  Powell,  id.  461  :  Penny  v.  Avi- 
son,  3  Jur.  N.  S.  62. 

(x)  Raphael  v.  Boehm,  11  Ves.  92  ;  13  Ves.  407,  590  ;  Dornford  v.  Dornford,  12 
Ves.  127  ;  Brown  v.  Sansome,  1  M'Clel.  &  Younge,  427  ;  Knott  v.  Cottee,  16  Beav. 
77;  but  see  Tebbs  v.  Carpenter,  1  Mad.  290;  Attorney-General  v.  Solly,  2  Sm. 
518 ;  Pride  v.  Fooks,  2  Beav.  430  ;  Wilson  v.  Peake,  3  Jur.  N.  S.  155. 


1 


DUTIES  OF  TRUSTEES  OF  CHATTELS  PERSONAL.  329 

cipal,  to  have  lent  tlie  money  to  himself,  upon  the  same  terms  upon  which 
he  could  have  lent  it  to  others,  and  as  often  as  he  ought  to  have  lent  it 
if  it  be  principal,  and  as  often  as  he  ought  to  have  received  it,  and  lent 
it  to  others,  if  the  demand  be  interest,  and  interest  upon  interest."(y) 
And  Lord  Erskine  said  he  concurred  in  the  same  principle,  viz.  <<  that 
a  trustee  directed  to  do  an  act  from  which  the  cestui  que  trust  would 
derive  a  particular  advantage,  and  not  performing  that  trust,  shall  be 
charged  precisely  in  the  same  manner  as  if  he  had  performed  it."(2) 

An  executor  will  not  in  general  be  charged  with  interest  but  from  the 
end  of  a  year  from  the  time  of  the  testator's  decease.  "  The  question," 
said  Lord  Thurlow,  "  whether  an  executor  shall  be  charged  with  interest 
on  the  assets  retained  in  his  hands,  turns  upon  this,  viz.  whether  the 
fund  has  been  so  kept  for  any  other  purpose  than  that  of  discharging 
the  growing  claims  upon  it.  It  frequently  may  be  necessary  for  an  exe- 
cutor to  keep  large  sums  in  his  hands,  especially  in  the  course  of  the 
first  year  after  the  decease  of  the  testator,  in  which  case  such  necessity 
is  so  fully  acknowledged,  that,  according  to  the  constant  course  of  the 
court,  the  fund,  until  that  time,  is  not  considered  distributable.  After 
that,  if  the  court  observes  that  an  executor  keeps  money  in  his  hands 
without  any  apparent  reason,  but  merely  for  the  purpose  of  using  it,  then 
it  becomes  negligence  and  a  breach  of  trust,  the  consequence  of  which 
is,  that  the  court  will  charge  the  *executor  with  interest."(a)  r^or^-\ 
"With  respect  to  the  general  question  of  charging  executors  L  J 
with  interest,"  observed  Sir  A.  Hart,  "  there  are  two  things  to  be  kept 
in  view,  first,  we  are  not  to  look  so  closely  into  the  dates  of  a  running 
account  to  calculate  interest  upon  it,  as  to  deter  respectable  men  from 
undertaking  the  office  of  executor;  and  on  the  other  hand  we  are  not 
loosely  to  permit  any  man,  however  respectable,  to  retain  the  money  of 
others  in  his  hands  without  making  it  productive.  An  executor's  duty 
in  this  respect  is  to  deal  with  the  trust  estate  as  a  provident  man  would 
deal  with  his  own,  and  every  provident  person  makes  interest  of  his 
money  when  he  has  got  together  a  sum  which  he  thinks  to  be  worth 
while  to  lay  out  at  interest. "(6) 

It  will  be  observed  that,  in  the  preceding  cases,  trustees  and  executors 
have  been  decreed  to  pay  interest  in  respect  only  of  moneys  actually 
come  to  hand,  and  improperly  retained ;  for  when  a  fund  has  never  been 
received,  but  has  been  inexcusably  left  outstanding  and  lost,  it  seems 
the  court  contents  itself  with  holding  the  trustees  liable  for  the  princi- 
pal, without  enforcing  against  them  the  equity,  that  as  the  fund,  if  got 
in,  would  have  become  productive,  the  trustees  ought  further  to  be 
charged  with  interest,  (c) 

SECTION  V. 

OP   THE   DISTRIBUTION    OF   THE    TRUST   FUND. 

It  is  incumbent  upon  the  trustee  to  satisfy  himself  beyond  doubt, 

{y)  Raphael  v.  Boehtn,  11  Ves.  107.  {z)  S.  C.  13  Vcs.  411. 

(a)  Forbes  v.  Ross,  2  Cox,  115.  {h)  Flanagan  v.  Nolan,  1  Moll.  85. 

(c)  Tebbs  v.  Carpenter,  1  Mad.  290;  and  see  Lowson  v.  Copeland,  2  B.  C.  C.  156. 


330  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

before  he  parts  with  the  possession  of  the  property,  who  are  the  parties 
legally  entitled  to  it.  And  the  necessity  of  seeing  that  the  trust-money 
comes  to  the  proper  hand  is  obligatory,  not  only  on  trustees  regularly 
invested  with  the  character,  but  to  all  persons  having  notice  of  the  equi- 
ties :  as  if  A.  lend  a  sum  to  B.  and  B.  afterwards  discovers  that  it  is 
trust-money,  he  cannot  pay  it  back  to  A.  unless  A.  had  a  power  of  sign- 
ing  *a  receipt  for  it.[d)  If  through  any  misapprehension  on 
L  J  the  part  of  the  trustee  the  trust  money  finds  its  way  into  a  chan- 
nel not  authorized  by  the  terms  of  the  trust,  he  will  be  held  personally 
responsible  for  the  misapplication  to  the  parties  who  can  establish  a  bet- 
ter claim.  "  I  have  no  doubt,"  said  Lord  Redesdale  upon  one  occasion, 
"  the  executors  meant  to  act  fairly  and  honestly,  but  they  were  misad- 
vised; and  the  court  must  proceed,  not  upon  the  improper  advice  under 
which  an  executor  may  have  acted,  but  upon  the  acts  he  has  done.  If 
under  the  best  advice  he  could  procure  he  acts  wrong,  it  is  his  mis- 
fortune ;  but  public  policy  requires  that  he  should  be  the  person  to 
suflFer."(e) 

This  must  be  considered  as  the  general  rule;  but  nnder partictdar 
circumstances  the  court  might  possibly  hold  an  executor  justified  by 
having  acted  upon  the  advice  of  counsel.  Thus,  a  testator  had  executed 
a  promissory  note  in  Switzerland  for  600/.,  but  by  a  counter-note  exe- 
cuted shortly  after,  it  was  declared  that  400?.  only  was  due  upon  valu- 
able consideration.  A  Swiss  court,  upon  proceedings  taken  there,  had 
awarded  the  payment  of  the  whole  6001.  The  executor  in  England, 
though  by  our  law  under  the  circumstances  of  the  case  but  400^.  was 
demandable,  had  discharged  the  whole  amount.  Lord  Alvanley  said, 
"  I  very  much  wish,  upon  the  rules  of  the  court,  I  could  hold  the  exe- 
cutor fully  justified;  but  when  I  consider  his  neglect  in  making  this 
payment  of  his  own  conjecture  and  to  the  wrong  of  the  cestuis  que  trust, 
I  must  hold  that  the  master  was  right  in  charging  him.  He  certainly 
acted  with  a  good  intention,  and  imagined  himself  justified;  but  he 
thought  fit  to  depend  upon  that  which  a  prudent  executor  would  not 
have  relied  on — this  strange  transaction  in  Switzerland.  1/  he  had  taken 
advice,  and  been  advised  hy  any  (jentleman  of  the  law  in  this  coun- 
try that  he  was  bound  to  make  this  payment,  I  would  not  have  held  him 
P^qp-T-i  liable,  for  I  will  ^ not  permit  a  testator  to  lay  a  trap  for  his  exe- 
L         J  cutor,  by  doing  a  foolish  act  which  may  mislead  him."{^f\ 

Every  executor  is  taken  to  know  the  law  of  this  country,  but  otherwise 
as  to  foreign  laws.  Thus,  where  a  legacy  was  given  to  a  married  woman 
domiciled  in  Scotland,  and  before  payment  of  the  legacy  the  husband 
died,  and  the  executors  of  the  testator  paid  the  legacy  to  the  wife,  and 

{d)  Sheridan  v.  Joyce,  1  Ir.  Eq.  Rep.  115. 

(e)  Doyle  v.  Blake,  2  Sch.  &  Lef.  243;  and  see  Urch  v.  Walker,  3  M.  &  C.  705, 
706;  Turner  v.  Maule,  3  De  Gex  &  Sm.  497  ;  Peers  v.  Ceeley,  15  Beav.  209.  In 
Boulton  V.  Beard,  3  De  Gex,  Mac.  &  Gor.  608,  the  fact  that  the  trustees  had  acted 
upon  the  advice  of  counsel  was  not  in  evidence,  which  accounts  for  the  silence  of 
the  L.  J.  upon  this  point  in  their  judgments. 

(/)  Vez  V.  Emery,  5  Ves.  141.  As  to  the  effect  of  acting  under  advice  of 
counsel  in  reference  to  costs,  see  Angier  v.  Stannard,  3  M.  &  K.  566  ;  Devey  v. 
Thornton,  9  Hare,  232  ;  Field  v.  Donoughmore,  1  Dru.  k  War.  234 :  Harper  v. 
Munday,  2  Jur.  N.  S.  1197. 


DUTIES  OF  TRUSTEES  OF  CHATTELS  PERSONAL.  331 

the  executors  of  the  husband  sued  the  executors  of  the  testator  for  the 
same  legacy  on  the  ground  that,  by  the  law  of  Scotland  where  the  wife 
was  domiciled,  the  chose  in  action  did  not  survive,  as  by  the  law  of  Eng- 
land, to  the  wife,  but  passed  to  the  representatives  of  the  husband,  it 
was  held,  that  the  executors  were  not  bound  to  know  the  law  of  Scotland, 
and  as  express  notice  of  it  was  not  proved  against  the  executors,  the 
prior  payment  was  declared  to  be  valid. (^) 

In  cases  where  there  exists  a  mere  shadow  of  doubt  as  to  the  rights  of 
the  parties  interested,  and  it  is  highly  improbable  that  any  adverse  claim 
will  in  fact,  be  ever  advanced,  the  protection  of  the  trustee  may  be  pro- 
vided for  by  a  substantial  bond  of  indemnity.  In  general,  however,  a 
bond  of  indemnity  is  a  very  unsatisfactory  safeguard,  for  when  the  danger 
arises,  the  obligors  are  often  found  insolvent,  or  their  assets  have  been 
distributed.  And  if  the  bond  be  to  indemnify  against  a  breach  of  trust, 
the  court  shows  no  mercy  towards  a  trustee  who  admits  himself  to  have 
wilfully  erred  by  having  endeavoured  to  arm  himself  against  the  conse- 
quences. 

A  trustee  cannot  be  expected  to  incur  the  least  risk,  and  therefore  if 
all  the  equities  be  not  perfectly  clear,  he  should  decline  to  act  without 
the  sanction  of  the  court,  and  he  will  be  allowed  all  costs  and  expenses 
incurred  by  him  in  an  application  for  that  purpose. (A)  And  as  the 
trustee  is  indemnified  *by  the  decree  of  the  court,  he  will  appeal  p^„^„^ 
from  any  decision  to  the  court  above  at  Jiis  own  risA-.(i)  L         -^ 

The  proceeding  may  be  instituted  either  by  the  trustee  or  the  cestui 
que  trust ;  but  in  most  cases  a  suit  is  sustained  rather  than  originated  by 
the  trustee,  but  whether  the  trustee  be  plaintiff  or  defendant,  he  should 
take  care  before  an  order  is  made,  that  all  parties  who  have  any  color  of 
title  are  before  the  court,  for  if  the  trustee  fail  in  his  duty  to  point  out 
the  proper  parties,  it  might  be  held  that  the  order  of  the  court  under 
such  circumstances  did  not  indemnify  him. 

Where  the  bill  is  filed  by  a  cestui  que  trust  and  it  is  found  at  the 
hearing  that  upon  the  true  construction  of  the  instrument  he  has  no 
interest  in  the  fund,  yet  if  the  point  was  so  doubtful  that  the  trustees 
could  not  safely  act  without  the  opinion  of  the  court,  the  plaintiff  will 
have  his  costs,  as  the  declaration  of  the  rights  of  the  parties  was  neces- 
sary to  the  administration  of  the  trust. (7o)  But  the  case  of  a  plaintiff 
filing  a  bill  on  the  ground  of  a  contingent  interest  which  fails  stands  on 
a  different  footing.  (^) 

The  court,  according  to  the  old  practice,  could  not  have  made  a  mere 
declaratory  order  without  consequential  directions, (m)  and  could  not 

{g)  Leslie  v.  Baillie,  2  Y.  &  C.  Ch.  Ca.  91. 

(A)  Talbot  V.  Earl  of  Radnor,  3  M.  &  K.  252  ;  Goodson  v.  Ellisson,  3  Russ.  583  ; 
Curleis  v.  Candler,  6  Mad.  123  ;  Knight  v.  Martin,  1  R.  &  M.  70  ;  S.  C.  Taml.  237  ; 
Taylor  v.  Glanville,  3  Mad.  176;  Angier  v.  Stannard,  3  M.  &  K.  566.  And  see 
Campbell  v.  Home,  1  Y.  &  C.  Ch.  Ca.  664. 

(i)  Rowland  v.  Morgan,  13  Jur.  23. 

(/.)  Westcott  V.  CuUiford,  3  Hare,  274,  and  cases  there  cited  ;  Turner  v.  Framp- 
ton,  2  Collver,  336;  Boreham  v.  Bignall,  8  Hare,  134;  Lee  v.  Delaue,  1  De  Gex  & 
Sm.  1.        '  (l)  Hay  v.  Boweu,  5  Beav.  610. 

(m)  See  Daniell  v.  Warren,  2  Y.  &  C.  Ch.  Ca.  292  ;  Shewell  v.  Shewell,  2  Hare, 
154;  Gaskell  v.  Holmes,  3  Hare,  438  ;  Say  v.  Creed,  3  Hare,  455. 


332       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

have  administered  the  trust  in  the  presence  of  some  only  of  the  parties 
interested,  or  as  to  a  part  only  of  the  trust  estate,  or  as  to  the  rights  of 
persons  entitled  under  a  will  without  taking  preliminary  accounts  j  but 
now  by  15  &  16  Vic.  c.  86,  sects.  50  &  51,  the  court  is  authorized  to 
make  declaratory  orders  merely,  as  also  to  adjudicate  on  questions  in  the 
presence  of  some  only  of  the  persons  interested,  and  as  to  part  only  of 
the  trust  estate,  and  without  ascertaining  the  particulars  or  accounts  of 
the  property  touching  which  the  questions  have  arisen.  The  opinion  of 
the  court  may  also  be  now  obtained  upon  a  special  case  under  the  pro- 
visions of  Sir  Geo.  Turner's  Act,  13  &  14  Vic.  c.  35.  ^ 

*A  not  unfrequent  difficulty  with  a  trustee  in  the  distribution 
L  ^"'^J  of  a  trust-fund  is,  that  the  cestui  que  trust  is  a,  feme  covert  whose 
husband  has  become  hankrupt  or  insolvent,  or  has  assigned  the  wife's 
share  of  the  trust  fund,  or  has  deserted  the  wife.  In  the  case  of  bank- 
ruptcy or  insolvency,  it  is  competent  to  the  trustee  to  agree  with  the 
assignees,  as  he  might  have  done  with  the  husband,  to  divide  the  fund,(H) 
and  the  payment  of  one  half  to  the  assignees,  and  the  settlement  of  the 
other  half  on  the  wife  and  children,  is,  in  the  absence  of  special  circum- 
stances, considered  a  reasonable  apportionment. (o)  As  the  moiety  paid 
to  the  assignees  represents  the  whole  of  the  husband's  interest,  the  en- 
tirety of  the  other  moiety  must  be  settled  on  the  wife  and  children,  to 
the  utter  exclusion  of  the  husband, (p)  except  on  failure  of  issue. (§)  It 
would  appear  that  in  Lord  Eldou's  time  a  rule  existed  against  giving  the 
wife  the  whole  fund.fr)  More  recently  in  a  case(s)  in  the  Exchequer, 
whei'e  the  husband  was  an  insolvent,  Baron  Alderson  directed  a  settle- 
ment of  the  v;liole  fund.  "The  situation,"  he  said,  ''of  an  insolvent  is 
very  different  from  that  of  a  hankrupt.  The  wife  of  an  insolvent  may 
be  in  the  workhouse  with  her  children,  and  yet  if  the  insolvent  after- 
wards acquires  property,  neither  the  wife  nor  the  children  will  be  bene- 
fitted by  it,  but  the  whole  goes  to  the  creditors.  A  bankrupt,  on  the 
other  band,  after  he  has  obtained  his  certificate,  is  a  free  man.  It 
appears  to  me,  therefore,  that  the  insolvent's  wife  and  children  are 
entitled  to  the  whole  fund,  and  if  I  am  bound  by  the  practice  of  the 
court  to  take  away  any  portion  of  it,  I  will  take  away  a  shilling."  At 
the  present  day,  it  is  clear  that  no  distinction  exists  between  insolvency 
and  bankruptcy,  and  that  the  court  will,  wherever  the  special  circum- 
r*^7m  '^^^^^^^^  warrant  the  step,  settle  *the  whole  on  the  wife  and  chil- 
■-        -J  dren.(<)     Indeed,  in  every  case  arising  in  reference  to  the  wife's 

(«)  Ryland  v.  Smith,  1  M.  &  C.  56. 

(o)  Napier  v.  Napier,  1  Dru.  &  War.  407;  Vaughan  v.  Buck,  1  Sim.  N.  S.  28T  ; 
Bagshaw  v.  Winter,  5  De  Gex  &  Sm.  468. 

{p)  Lloyd  V.  Williams,  1  Mad.  450 ;  Barker  v.  Lea,  6  Mad.  330 ;  Whittem  v. 
Sawyer,  1  Beav.  593. 

(?)  Carter  v.  Taggart,  5  De  Gex  &  Smale,  49 ;  Gent  v.  Harris,  10  Hare,  383  ; 
Bagshaw  v.  Winter,  5  De  Gex  &  Sm.  408. 

{r\  Dunkley  v.  Dunkley,  2  De  Gex,  Mac.  &  Gor.  396. 

(«)  Brett  V.  Greenwell,  3  Y.  &  C.  230. 

{t)  Gardner  v.  Marshall,  14  Sim.  575  ;  and  see  Re  Kincaid,  1  Drew.  326  ;  Wat- 
son V.  Marshall,  17  Beav.  363  ;  Dunkley  v.  Dunkley,  2  De  Gex,  Mac.  &  Gor.  390 ; 
Carter  v.  Taggart,  5  De  Gex  &  Smale,  49  ;  Gent  v.  Harris,  10  Hare,  383  ;  and  see 
Bonner  v.  Bonner,  17  Beav.  86  ;  Koeber  v.  Sturgis,  22  Beav.  588. 


DUTIES    OF    TRUSTEES    OF    CHATTELS    PERSONAL.     333 

equity  to  a  settlement,  the  court  exercises  a  discretion  witli  reference  to 
the  particular  circumstances,  namely,  the  conduct  of  the  parties,(if)  the 
wife's  means  of  livelihood, (r)  the  settlement,  if  any,  previously  made 
upon  her,(?<5)  and  the  sums  before  received  by  the  husband  in  respect  of 
the  wife's  fortune. (,c)  The  trustee  should  of  course  endeavour  to  act  as 
the  court  itself  would  direct. 

The  wife's  claim  in  equity  to  a  settlement  prevails  even  against  the 
assignees  of  the  husband  for  valuable  consideration,  except  where  the 
wife  is  tenant  for  life  only,  when  the  wife  has  no  equity  against  the 
purchaser.  (^) 

A  case  of  perplexity  to  trustees  which,  until  recent  decisions  had 
settled  the  law,  arose  not  unfrequently,  was  as  follows: — A  fund  was 
settled  on  A.  for  life,  and  after  his  decease  on  B.,  a  married  woman, 
absolutely;  and,  in  order  to  reduce  the  wife's  diose  in  action  into  posses- 
sion, the  husband  proposed  to  purchase  the  prior  life-interest,  and  have 
it  assigned  to  himself  or  his  wife.  In  such  case,  it  was  asked,  were  the 
trustees  justified  in  considering  the  fund  as  reduced  into  possession,  and 
payable  to  the  husband,  or  could  the  wife  claim  by  survivorship,  on  the 
ground  that  her  interest,  notwithstanding  the  assignment  of  the  life- 
estate,  must  still  be  regarded  in  equity  as  of  a  reversionary  nature,  and 
so  incapable  of  reduction  into  possession  ?  If  the  assignment  was  made 
to  the  husband,  it  might  be  said,  that,  as  the  life-interest  was  possessed 
by  him  in  his  own  right,  and  the  reversionary  interest  in  right  of  his  icife, 
the  two  could  not  coalesce ;  and  if  the  assignment  was  made  to  the  wife 
so  that  the  husband  *would  have  both  interests  in  the  same  right,  r^gyj^-i 
it  might  be  said  that  the  feme  on  the  coverture  ceasing  might  L  J 
disclaim  the  accession  of  interest  that  caused  the  merger,  and  that,  as  the 
transaction  on  the  face  of  it  was  a  mere  contrivance  of  the  parties  to 
defeat  the  right  of  the  wife,  she  might  hold  the  trustees  answerable  for 
the  consequences. 

In  a  case  where  10,000?.  stock  was  settled  in  this  manner,  and  it  was 
proposed  that  the  husband  should  purchase  the  life-interest  for  3000/., 
and  take  an  assignment  of  it  to  the  wife,  the  opinion  of  the  late  Mr. 
Jacob  was  as  follows  : — "  I  understand  that  Mrs.  B.  has  a  vested  inter- 
est in  the  10,000/.,  subject  only  to  the  life-interest  of  A.  her  father; 
and  if  so,  A.  can  assign  his  life-interest  to  Mrs.  B.,  and  the  effect  will 
be  to  convert  her  interest  into  an  immediate  right  to  the  fund  in  posses- 
sion. And  when  a  married  woman  has  such  an  immediate  right,  the 
trustees  in  general  may  safely  transfer  to  the  husband.  ]3ut  I  do  not 
think  it  safe  for  the  trustees  to  do  this  of  their  own  authority  when  the 
interest  was  originally  reversionary,  and  has  by  an  assignment  of  this 
description  been  converted  into  a  present  interest.  If  the  wife  survived 
her  husband,  she  might  contend  (and  possibly  with  success)  that  the 
assignment  was  a  contrivance  to  defeat  her  right  by  survivorship,  and  I 

(m)  Gilchrist  v.  Cator,  1  De  Gex  &  Sm.  188. 

{v)  Bagshaw  v.  Winter,  5  De  Gex  &  Sm.  467 ;  Ex  parte  Pugb,  1  Drew.  202. 

{w)  Scott  V.  Spashett,  3  Mac.  &  Gor.  599. 

{x)  Gardner  v.  Marshall,  14  Sim.  575;  Vaughan  v.  Buck.  1  Sim.  N.  S.  287. 

(?/)  Tiild  V.  Lister,  10  Hare,  140. 

February,  1857.— 22 


33-4       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

do  not  think  it  quite  clear  that  the  court  would  hold  her  bound  by  it. 
But  after  the  assignment  has  been  made,  Mr.  and  Mrs.  B.  may  file  an 
amicable  bill  against  A.  and  the  trustees  praying  a  transfer  to  Mr.  B., 
and  I  think  there  would  be  very  little  doubt  of  the  court  making  the 
decree  for  a  transfer  as  prayed,  upon  Mrs.  B.  being  examined  in  court, 
and  consenting,  and  upon  an  affidavit  of  their  being  no  settlement  affect- 
ing this  fund.  And  I  think  that  the  decree  of  the  court  would  fully  in- 
demnify the  trustees  in  making  the  transfer."  A  bill  was  accordingly 
filed  by  the  husband  and  wife  against  A.  and  the  trustees :  and  on  the 
wife  beino-  examined  in  court,  and  waiving  a  settlement,  the  trustees 
were  ordered  to  sell  out  the  stock,  pay  the  costs,  and  hand  over  the  bal- 
ance to  the  husband. (2) 

A  similar  order  was  made  by  the  vice-chancellor  of  ^England 
L  "^'-"J  iu  several  subsequent  cases, (a)  and  Lord  Cottenham,  on  being 
applied  to  under  one  of  the  orders,  seems  to  have  assented  to  the  doc- 
trine. (&)  But  in  a  case  before  the  master  of  the  rolls,  the  question  was 
considered  to  involve  too  much  difficulty  to  be  disposed  of  on  petition, (c) 
and  the  case  of  Weittle  v.  Henning,(fZ)  before  Lord  Cottenham,  has  now 
decided  that  a  reversionary  chose  in  action  of  the  wife  cannot  by  means 
of  this  machinery  be  reduced  into  possession  so  as  to  be  made  dis- 
posable. 

When  the  trustee  is  satisfied  as  to  the  parties  rightfully  entitled,  he 
may  pay  the  money  either  to  the  parties  themselves,  or  to  any  agent  em- 
powered by  them  to  receive  it ;  and  the  authority  need  not  be  by  power 
of  attorney,  or  by  deed,  or  even  in  tcriting.  The  trustee  is  safe  if  he 
can  prove  the  authority,  however  communicated.  But  a  trustee  would 
not  be  acting  J) rude7if/i/  if  he  parted  with  the  fund  to  an  agent  without 
some  document  producible  at  any  moment  by  which  he  could  establish 
the  fact  of  the  agency. 

The  trustee  must  look  well  to  the  genuineness  of  the  authority,  for  if 
he  pay  a  wrong  party  it  will  be  at  his  own  peril.  Thus  where  A.,  pos- 
sessed of  1000/.  million  bank  stock,  employed  B.,  a  broker,  to  receive 
the  dividends  for  her,  and  B.  forged  a  letter  of  attorney  authorizing  him 
to  sell  the  stock,  and  a  sale  was  effected  accordingly,  it  was  decreed  by 
Lord  Xorthington  that  the  company  was  bound  to  make  good  the  loss; 
for  "a  trustee,"  he  said,  "whether  a  private  person  or  body  corporate, 
must  see  to  the  reality  of  the  authority  empowering  him  to  dispose  of  the 
trust-money ;  and  if  the  transfer  be  made  without  the  authority  of  the 
owner,  the  act  is  a  nullity,  and  in  consideration  of  law  and  equity  the 
rights  remain  as  before  "(e) 


[*373] 


Where  an  infant  cestui  que  trust  represented  himself  to  be  *of 
age,  and  induced  the  trustee  to  pay  him,  it  was  held  that  as  the 


iz)  Wilson  V.  Oldham,  V.  C.  March  5,  1841,  MS. 

(a)  Creed  v.  Perry,  14  Sim.  592  ;  Bean  v.  Sykes,  ib.  593  ;  Lachton  v.  Adams, 
ib.  594 ;  Hall  v.  Hugonin,  ib.  595;  Bishop  v.  Colebrook,  16  Sim.  39. 

(b)  Lachton  v.  Adams,  14  Sim.  594. 

(c)  Siory  V.  Tonge,  7  Beav.  91  ;  and  see  Box  v.  Box,  2  Conn.  &  Laws,  605. 
{d)  2  Phill.  731. 

(e)  Ashby  v.  Blackwell,  2  Ed.  299  ;  Sloman  v.  Bank  of  England,  14  Sim.  475  ; 
and  see  Harrison  v.  Pryse,  Barn.  324;  Ex  parte  Joliffe,  8  Beav.  168. 


DUTIES  OF  TRUSTEES  OF  CHATTELS  PERSONAL.  335 

infant  was  old  enough  to  commit  a  fraud,  the  trustee  could  not  be  liable 
to  him  over  again  when  he  came  of  age.(/) 

It  is  the  practice  of  the  court  in  administration  suits,  where  a  debt  is 
owing  to  a  firm  jointly,  to  pay  the  amount  to  the  surviving  partners  with- 
out the  concurrence  of  the  representatives  of  the  deceased  partners,  and 
i^ prima  facie''  a  trustee  would  be  justified  in  doing  the  same.(^) 

If  a  trustee  or  executor  has  made  an  overpayment  to  a  cestui  que  trust 
or  legatee,  he  has  a  right  to  recoup  himself  out  of  any  other  interest  of 
that  cestui  que  trust  or  legatee,  and  the  court  will  even  make  an  order  on 
such  cestui  que  trust  or  legatee,  personally  to  repay  the  trustee  or  exe- 
cutor,(/4)  but  not  after  a  lapse  of  thirty  years. (i) 

On  the  final  adjustment  of  the  trust  accounts  it  is  usual  for  the  trus- 
tee, on  handing  over  the  balance  to  the  parties  entitled,  to  require  from 
them  an  acknowledgment  that  all  claims  and  demands  have  been  set- 
tled, (/c)  It  is  reasonable,  that  when  the  trustee  parts  with  the  whole 
fund,  and  so  denudes  himself  of  the  means  of  defence,  he  should  be 
placed  by  the  party  receiving  the  benefit  in  the  utmost  security  against 
future  litigation.  In  practice  it  is  usual  to  require  a  release  under  seal, 
for  an  acquittance  of  this  kind  maj/  be  opened  by  the  cestui  que  trust  on 
showing  fraud,  concealment  or.  mistake;  hnt prima  facie  it  is  a  simple 
and  valid  defence,  and  throws  on  the  releasor  the  onus  of  displacing  it. 
In  strict  right,  however,  a  trustee  in  the  absence  of  special  circum- 
stances cannot  insist  upon  a  release  under  seal.  Thus,  in  Chadwick  v. 
Heatley,(/)  a  residuary  legatee  who  had  become  entitled  in  possession 
called  for  the  transfer  of  a  sum  of  stock  representing  the  residue.  The 
trustee  insisted  on  a  general  release  in  respect  of  the  testator's  estate, 
and  the  residuary  legatee  offered  only  a  receipt  for  the  particular  sum. 
A  bill  was  filed  by  the  *claimant  against  the  trustee,  and  the  Vice-  r^;q74^-| 
Chancellor  K.  Bruce  held  that  in  strictness  a  release  by  deed  could  L  J 
not  be  demanded,  though  he  thought  it  was  not  out  of  the  ordinary 
course  of  business  or  unreasonable  ;  that  the  plaintiff's  refusal  to  execute 
a  deed  was  justifiable,  but  that  he  was  bound  to  have  given  an  acquit- 
tance in  writing  in  full  of  all  demands.  It  seems  also  to  have  been  de- 
cided in  a  case  at  the  rolls,(m)  that  a  trustee  cannot  as  a  matter  of  right 
insist  on  a  release  under  seal. 

In  King  v.  Mullius,(i()  a  sum  of  174?.  had  been  placed  in  the  hands 
of  a  trustee  upon  trust  by  a  parol  declaration  for  ^Sarah  for  life,  and  ou 
her  death  to  pay  her  funeral  expenses,  and  subject  thereto  to  divide  the 
fund  between  John  and  William.  The  costs  of  the  suit  depended  on 
the  question  whether  the  trustee  ought,  as  required,  to  have  transferred 

(/)  Overton  v.  Banister,  3  Hare,  503. 

(ff)  Philips  V.  Philips,  3  Hare,  289. 

(A)  Livesey  v.  Livesey,  3  Russ.  287;  Fordham  v.  Wallis,  10  Hare,  217;  Dibbs 
V.  Goren,  11  Beav.  483. 

(i)  Bate  v.  Hooper,  5  ])e  G.  M.  &  G.  338. 

(A:)  See v.  Osborne,  6  Ves.  455  ;  but  the  release  here  spoken  of  was  ap- 
parently a  conveyance. 

(l)  2  Coll.  137  ;  Warter  v.  Anderson,  11  Hare,  301. 


(m)  Fulton  v.  Giliuour,  15  February,  1845,  Hill  on  Trustees,  604. 
(w)  Vice-Chancellor  Kindersley,  21st  December,  1852,  iMS.;   I  Dr( 


•ew.  308. 


336  LEAVIX    ON    THE    LAW    OF    TRUSTS,    ETC. 

the  sums  on  the  joint  receipt  of  Sarah,  John,  and  William,  or  whether 
he  was  rio'ht  in  refusing,  unless  they  executed  a  release  under  seal.  The 
vice-chancellor  decided  that  the  trustee  was  entitled  to  a  release  on  the 
ground,  first,  that  the  trust  was  by  parol,  and  secondly,  that  the  time  of 
payment,  according  to  the  tenor  of  the  deed,  was  anticipated,  as  the 
tenant  for  life  was  still  living.  These  reasons  cannot  be  regarded  as 
satisfactory.  The  circumstance  that  the  trust  was  by  parol,  and  there- 
fore obscure,  might  have  been  ground  for  demanding  an  indemnity;  but 
seems  to  afford  no  reason  for  requiring  a  release  under  seal  as  distin- 
guished from  a  simple  receipt  or  acquittance  in  writing.  Neither  does 
the  anticipation  of  the  time  appear  to  be  material,  for  Sarah,  John,  and 
William  were  admitted  to  be  the  on] j  cesfu is  que  trust,  and  their  concur- 
rence in  the  receipt  was  equivalent  to  a  reduction  into  possession. 

The  trust  fund  is  not  unfrequently  transferred  from  the  trustees  of  an 
old  settlement  to  the  trustees  of  some  new  settlement,  and  the  trustees 
of  the  old  settlement  insist  on  a  general  release  before  they  will  part  with 
the  fund,  while,  on  the  other  hand,  the  trustees  of  the  new  feel  a  reluc- 
tance  to  *give  more  than  a  simple  receipt.  It  is  believed  that 
L  "^  J  the  requisition  of  the  trustees  of  the  old  settlement  has  been 
generally  complied  with ;  but  of  course  the  trustees  of  the  new  cannot 
be  called  upon  to  enter  into  any  covenant  of  indemnity. 

As  the  party  to  benefit  by  a  deed  is,  in  general,  the  one  to  prepare  it, 
the  release  will  be  drawn  by  the  solicitor  of  the  trustee.  Another  rea- 
son would  be  that  the  trustee  has  the  necessary  documents  in  his  posses- 
sion.    The  expense  must,  of  course,  be  paid  out  of  the  trust  fund. 

When  a  trustee  pays  money  under  the  direction  of  the  court,  he  is 
indemnified  by  the  order  itself,  and  is  not  entitled  to  any  release  from 
the  parties. (d)  It  would  be  impossible  to  hold  a  trustee  answerable  for 
an  act  not  of  himself  but  of  the  court.  It  is  the  duty,  however,  of  the 
trustee  to  fully  inform  the  court  of  all  the  material  facts  within  his 
knowledge,  and  if  he  improperly  withheld  them  he  might  be  made  re- 
sponsible for  the  deception  practised  on  the  court. 

Now  by  the  10th  &  11th  Vict.  c.  96,  entitled  "  An  act  for  better 
securing  trust  funds  and  for  the  relief  of  trustees,^'(|>)  after  reciting  that 
it  is  expedient  to  provide  means  for  better  securing  trust  funds,  and  for 
relieving  trustees  from  the  responsibility  of  administering  trust  funds  in 
cases  where  they  are  desirous  of  being  so  relieved ;  it  is  enacted  : 

I.  That  all  trustees,  executors,  administrators,  or  other  persons  having 
ill  their  hands  any  moneys  belonging  to  any  trxist  whatever,U[\  or  the 

(o)  See  Gillespie  v.  Alexander,  3  Russ.  137  ;  Underwood  v.  Hatton,  5  Beav.  39; 
Fai-rell  v.  Smith,  2  B.  &  B.  33T  ;  Fletcher  v.  Stevenson,  3  Hare,  3T0  ;  Knatcbbull 
V.  Fearnhead,  3  M.  &  Cr.  126 ;  David  v.  Frowd,  1  M.  &  K.  209  ;  Sawyer  v.  Birch- 
more,  1  Keen,  401,  &c. 

[p)  See  an  Essay  on  this  act  by  F.  H.  Appach,  where  all  the  cases  up  to  the 
date  of  that  of  publication  will  be  found  carefully  collected. 

(?)  The  owner  of  an  estate  charged  with  a  sum  in  favour  of  another  is  not  a 
trustee  of  that  sum  within  the  act,  for  he  has  not  the  moneys  in  his  hands ;  and  if 
it  were  held  otherwise,  the  money  might  be  paid  into  court,  and  the  incumbrancer 
would  have  to  bear  the  costs  of  getting  it  out;  whereas  the  nature  of  the  charge 
is,  that  the  beneficiary  is  entitled  to  have  it  raised  out  of  the  estate,  together  with 
the  costs  of  raising  it:  Re  Bucklev's  Trust,  17  Beav.  110. 


DUTIES  OF  TRUSTEES  OF  CHATTELS  PERSONAL.  .337 

major  part  of  them  shall  be  at  *lihcrti/ ,{^r)  on  filing  an  affidavit  p^o-^.-. 
shortly  describing  the  instrument  creating  the  trust,  according  to  L  J 

the  best  of  their  knowledge  and  belief,(s)  to  pay  the  same  with  the 
privity  of  the  accountant-general  of  the  Iligh  Court  of  Chancery  into 
the  bank  of  England, (^)  to  the  account  of  such  accountant-general  in  the 
matter  of  the  particular  trust,{ii)  (describing  the  same  by  the  r+g— 1 
*names  of  the  parties  as  accurately  as  may  be  for  the  purpose  of  L  J 
distinguishing  it,)  in  trust  to  attend  the  orders  of  the  court,  and  that  all 
trustees  or  other  persons  having  any  annuities  or  stocks  standing  in  their 

But  it  has  been  thought  that  where  there  is  a  power  of  sale  without  a  power  of 
signing  receipts  the  purchaser  may  talce  the  estate  under  the  power  of  sale,  and 
pay  the  money  into  court  under 'the  Trustee  Relief  Act;  Cox  v.  Cox,  1  Kay  <fe 
Johns.  251. 

A  sum  of  money  was  payable  by  instalments,  and  the  trustee,  after  receiving 
one  instalment,  paid  it  into  court,  and  on  a  petition  by  the  cesltti  que  trust,  the 
court  not  only  administered  the  instalment  paid  in,  but  also  gave  directions  to  the 
trustee  as  to  the  future  instalments ;  and  said  the  order  would  give  ample  indem- 
nity to  the  trustee  ;  Re  Wright's  Settlement,  1  Sm.  &  Gif.  App.  V.  The  court  had, 
in  fact,  no  jurisdiction  as  to  the  instalments  payable  infuturo,  and  the  order  would 
be  an  indemnity  in  this  sense  only,  that  the  trustee  would  be  acting  in  a  way 
which  had  received  the  sanction  of  the  court,  though  extra-judicially. 

Where  money  in  vrhich  a  lunatic  is  interested  has  been  paid  into  court,  the  lord 
chancellor  has  jurisdiction  under  the  act  to  order  re-payment  to  the  guardian?  of 
the  part  of  the  expenses  incurred  by  them  for  the  support  of  the  lunatic ;  Re  Up- 
fuU's  Trust,  3  Mac.  &  Gor.  281. 

(r)  Liberty  only  is  given  to  trustees  to  transfer  the  fund  into  court,  and  bills  or 
claims  for  the  administration  of  the  trust  may  be  filed  by  or  against  trustees,  or 
cestuis  que  trust  as  before,  at  any  time  previous  to  the  transfer  into  court ;  Thorp 
v.  Thorp,  1  Kay  &  Johns.  438. 

When  the  fund  has  been  actually  transferred  into  court  under  the  Trustee  Re- 
lief Act,  the  court's  jurisdiction  attaches,  and  any  proceeding  must  be  taken  un- 
der the  act,  and  no  bill  or  claim  can  be  filed  with  reference  to  the  fund  transfer- 
red, though,  as  to  any  portion  deducted  for  costs,  or  other  part  retained  by  the 
trustees,  or  for  which  they  are  accountable,  the  ordinary  remedies  are  preserved  to 
the  cestuis  que  trust;  Goode  v.  West,  9  Hare,  378  ;  Attorney-General  v.  Alford,  2 
Sm.  &  Gif.  488. 

(s)  The  affidavit  must  not  go  into  the  whole  history  of  the  trust,  so  as  to  show 
upon  the  accounts  how  the  particular  sum  arose,  or  the  trustee  will  be  deprived 
of  his  costs;  In  re  Waring,  16  Jur.  652.  All  the  trustees  should  properly  join  in 
the  affidavit,  as  all  may  have  some  information  to  contribute,  but  under  particular 
circumstances  the  court  will  order  the  accountant-general  to  receive  the  money 

on  the  affidavit  of  one  of  several  co-trustees ;  v. ,  V.  C.  Wood,  1  Jur. 

N.  S.  974. 

(t)  The  payment  may  of  course  be  made  without  an  order  of  the  court :  In  re 
Biggs,  11  Beav.  27.  And  when  an  executor,  after  paying  money  into  court,  dis- 
covered debts  of  the  testator,  he  was  allowed  to  have  the  money  paid  back  to  him 
out  of  court,  on  his  undertaking  to  apply  it  properly.  Re  Tournay,  3  De  Gex  & 
Sm.  677. 

(w)  The  money  must  not  be  paid  in  by  an  executor  to  an  account,  '-the  trusts 
of  the  testator's  will,"  for  this  implies  not  a  particular  trust,  but  a  general  admin- 
istration of  the  testator's  estate.  The  executor  must  take  on  himself  the  respon- 
sibility of  severing  the  fund  from  the  testator's  assets,  and  appropriating  it  to  the 
particular  purpose,  and  then  pay  it  in  to  the  limited  account.  If  it  has  already 
been  paid  in  to  an  account  too  general  for  the  court  to  deal  with,  it  may,  on  a 
separate  application,  be  carried  over  to  the  right  account,  and  the  court  will  then 
proceed  to  adjudicate  upon  the  rights  of  the  parties  ;  Re  Joseph's  Will,  11  Beav. 
625  ;  Re  Everett,  12  Beav.  485  ;  Re  Wright's  Will,  15  Beav.  367.  As  to  the  pro- 
per heading  of  the  account,  see  further  In  re  Jcrvoise,  12  Beav.  209  ;  Re  Tillslone's 
Trust,  9  Hare,  Append.  LIX. ;  and  see  Appach  on  the  Acts,  p.  44. 


338       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

namcs(^')  in  the  books  of  the  governor  and  company  of  the  bank  of  Eng- 
land, of  the  East  India  Company,  or  South  Sea  Company,  or  any  govern- 
ment or  parliamentary  securities  standing  in  their  names,  or  in  the  names 
of  any  deceased  persons  of  whom  they  shall  be  personal  representatives, 
upon  any  trust  whatever,  or  the  major  part  of  them  shall  be  at  liberty 
to  transfer  or  deposit  such  stocks  or  securities  into  or  in  the  name  of  the 
said  accountant-general,  with  his  privity  in  the  matter  of  the  particular 
trust  (describing  the  same  as  aforesaid,)  in  trust  to  attend  the  orders  of 
the  said  court, (w)  and  in  every  such  case  the  receipt  of  one  of  the  cashiers 
of  the  said  bank  for  the  money  so  paid,  or  in  the  case  of  stocks  or  securi- 
ties the  certificate  of  the  proper  officer  of  the  transfer  or  deposit  of  such 
stocks  or  securities,  shall  be  a  sufficient  discharge  to  such  trustees  or  other 
persons  for  the  money  so  paid,  or  the  stocks  or  securities  so  tranferredor 
deposited,  (x) 

II.  That  svch  orders  as  shall  seem  Jit  shall  from  time  to  time  be  made 
by  the  High  Court  of  Chancery  in  respect  of  the  trust  moneys,  stocks,  or 
securities,  so  paid  in,  transferred,  and  deposited  as  aforesaid;  and  for  the 
investment  and  payment  of  any  *such  moneys,  or  of  any  dividends 
L  -I  or  interest  on  any  such  stocks  or  securities,  and  for  the  transfer  and 
delivery  out  of  any  such  stocks  and  securities,  and  for  the  administration 
of  any  such  trusts  generally,  upon  a  petitionijA  to  be  presented  in  a 
summary  way  to  the  lord  chancellor  or  the  master  of  the  rolls  without 
bill  by  such  party  or  parties  as  to  the  court  shall  appear  to  be  competent 
and  necessary  in  that  behalf,  and  service  of  such  petition  shall  be  made 

(y)  Where  stock  is  standing  in  the  names  of  deceased  and  surviving  trustees, 
the  survivor  may  transfer  into  court  under  the  act ;  In  re  Parry,  6  Hare,  306. 

{w)  Where  the  court  is  not  satisfied  as  to  the  facts  by  affidavit,  it  will,  before 
making  an  order,  direct  an  inquiry ;  Re  Wood's  Trust,  15  Sim.  469 ;  and  see  Re 
Sharpe's  Trust,  15  Sim.  470. 

(x)  The  payment  into  court  is  a  discharge  only  as  to  the  money  paid  in,  and 
leaves  the  trustee  liable  to  a  suit  in  respect  of  the  costs  deducted  by  him,  or  any 
other  moneys  that  might  be  recovered  upon  the  footing  of  the  trust ;  see  Goode 
V.  West,  9  Hare,  378 ;  Attorney-General  v.  Alford,  2  Sm.  &  Gif.  488  ;  Thorp  v. 
Thorp,  1  Kay  k  Johns.  438. 

{y)  The  application  must  be  made  by  petition,  and  cannot  be  made  upon  mo- 
tion ;  In  re  Masselin's  Will,  15  Jur.  1073  ;  or  upon  a  summons  at  chambers.  But 
when  an  order  has  been  once  made  upon  a  petition  in  compliance  with  the  act,  so 
as  to  found  the  jurisdiction,  any  further  proceeding  may  be  at  chambers  ;  Re 
Hodges,  4  De  Gex,  Mac.  &  Gor.  491. 

The  trustees  themselves  are  competent  to  present  the  petition,  but  they  are  not 
the  proper  persons,  and  the  court  will  not  allow  them  more  than  respondents' 
costs  ;  Re  Cazneau's  Legacy,  2  Kay  &  J.  249. 

It  was  once  held  that  where  the  fund  had  been  transferred  into  court,  there  was 
still  no  such  suit  or  matter  actually  pending  as  to  dispense  with  the  consent  of 
the  charity  commissioners  to  an  application  on  behalf  of  a  charity ;  Re  Mark- 
well's  Legacy,  17  Beav.  618.  But  afterwards  it  was  ruled  by  the  Court  of  Appeal 
that  in  such  a  case  there  was  a  matter  pending  within  the  meaning  of  the  Chari- 
table Trusts  Act,  1853 ;  Re  Lister's  Hospital,  6  De  G.  M.  &  G.  184. 

The  petition  should  set  out  the  material  statements  of  the  affidavit  under  which 
the  money  is  paid  in,  as  the  affidavit  is  regarded  as  a  declaration  of  the  trust  to 
which  the  attention  of  the  court  is  to  be  called ;  Re  Levett's  Trust,  5  De  Gex  k 
Sm.  619;  Re  Flack's  Settlement,  10  Hare,  Append.  XXX.  But  the  petition  must 
not  set  out  the  affidavit  in  extenso,  or  at  a  needless  length  ;  Re  Courtois,  17  Jur. 
852.     10  Hare,  Append.  LXIV. 

A  claimant  may  proceed  in  forma  pauperis  under  the  act;  Re  Money,  13  Beav. 


DUTIES  OF  TRUSTEES  OF  CHATTELS  PERSONAL.  339 

upon  such  person  or  persons  as  the  court  shall  see  fit  and  direct ;  and 
every  order  made  upon  any  such  petition  shall  have  the  same  authority 
and  effect,  and  shall  be  enforced,  and  subject  to  rehearing  and  appeal, 
in  the  same  manner  as  if  the  same  had  been  made  in  a  suit  regularly 
instituted  in  the  court;  and  if  it  shall  appear  that  any  such  trust  funds 
cannot  be  safely  distributed  without //ie  institution  of  one  or  more  suit  or 
suits  the  lord  chancellor  or  master-  of  the  rolls  may  direct  any  such  suit 
or  suits  to  be  instituted.  (.?) 

*The  following  general  orders  relative  to  this  act  have  .since,  r:jcq7QT 
in  pursuance  of  the  power  given  by  the  act,  been  issued  by  the  L  J 
court. 

1.  Any  trustee  desiring  to  pay  money  or  transfer  stock  or  securities 
into  the  name  of  the  accountant-general  of  the  Court  of  Chancery  under 
the  said  act,  is  to  file  an  affidavit  entitled  in  the  matter  of  the  act  and  of 
the  trust,  and  setting  forth — 

1.  His  own  name  and  address. 

2.  The  place  where  he  is  to  be  served  with  any  petition  or  any  notice 

of  any  proceeding  or  order  of  the  court  relating  to  the  trust 
fund. 

3.  The  amount  of  stock,  securities,  or  money  which  he  proposes  to 

deposit,  or  to  transfer,  or  to  pay  into  court  to  the  credit  of  the 
trust. 

4.  A  short  description  of  the  trust,  and  of  the  instrument  creating  it. 

5.  The  names  of  the  parties  interested  in  or  entitled  to  the  fund,  to 

the  best  of  the  knowledge  and  belief  of  the  trustee. 

6.  The  submission  of  the  trustee  to  answer  all  such  inquiries  relating 

to  the  application  of  the  stocks,  securities,  or  money  transferred, 
deposited,  or  paid  in,  under  the  act,  as  the  court  may  think 
proper  to  make  or  direct. 

2.  The  accountant-general,  on  production  of  an  office  *copy  of  j-^oda-i 
the  affidavit,  is  to  give  the  necessary  directions  for  transfer,  de-  •-  J 
posit,  or  payment,  and  to  place  the  stock,  securities,  or  money,  to  the 
account  of  the  particular  trust,  and  such  transfer,  deposit,  or  payment  is 
to  be  certified  in  the  usual  manner. 

(z)  The  court  under  this  act  has  ample  jurisdiction  as  upon  a  bill  filed,  and 
may  therefore  declare  the  validity  or  invalidity  of  a  deed,  without  directing  a  suit, 
if  the  court  in  the  exercise  of  its  discretion  do  not  think  a  suit  necessary;  Lewis 
V.  Hillman,  3  H.  L.  C.  607.  Where  trustees  of  a  marriage  settlement  had  trans- 
ferred the  fund  into  court,  and  a  petition  was  presented  by  a  person  claiming  ad- 
versely to  the  settlement,  A^ice-Chancellor  Wood  disposed  of  the  case  upon  the 
petition,  no  party  having  objected  ;  but  before  the  lords  justices,  the  respondent 
not  consenting,  the  petition  was  ordered  to  stand  over  that  a  bill  might  be  filed  ; 
Re  Fozard's  Trust,  1  Kay  &  Johns.  233,  24  Law  Jour.  441,  Ch.  In  another  pre- 
vious case,  Vice-Chancellor  Wood  had  also  disposed  of  the  matter  on  petition, 
and  said  that  if  there  were  creditors  or  other  unascertained  claims,  a  suit  might 
be  necessary  ;  but  that  otherwise  the  court  had  jurisdiction  as  in  a  suit,  and  might 
direct  an  issue  to  try  a  question  of  sanity  or  the  like ;  Re  Allen's  Will,  Kay's  Rep. 
App.  LL;  and  see  In  re  Bloye's  Trust,  2  Hall  &  Tw.  140  ;  1  Mac.  &  Gor.  488  ;  Ex 
parte  Stuteley,  1  De  Gex  &  Sm.  703. 

The  court  directs  a  suit  for  its  own  satisfaction  only,  and  will  not  authorize  the 
petitioner  to  file  a  bill  because  it  may  be  the  more  convenient  course  for  making 
out  his  title  ;  Re  Harris's  Trust,  18  Jur.  721. 


340  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

3.  The  trustee  having  made  the  payment,  transfer,  or  deposit,  is  forth- 
with to  give  notice  thereof  to  the  several  persons  named  in  his  affidavit 
as  interested  in  or  entitled  to  the  fund. 

4.  Such  persons  or  any  of  them,  or  the  trustee,  may  apply  by  petition, 
as  occasion  may  require,  respecting  the  investment,  payment  out,  or  dis- 
tribution of  the  fund,  or  of  the  dividends  or  interest  thereof. 

5.  The  trustee  is  to  be  served  with  notice  of  any  application  made  to 
the  court  respecting  the  fund,  or  the  dividends  or  interest  thereof,  by  any 
party  interested  therein  or  entitled  thereto. (a) 

*6.  The  parties  interested  in  or  entitled  to  the  fund,  are  to  be 
L  '^^■^J  served  with  notice  of  any  application  made  to  the  court  by  the 
trustees  respecting  the  fund  in  court,  or  the  interest  or  dividends 
thereof,  (ft) 

7.  No  petition  is  to  be  set  down  to  be  heard,  until  the  petitioner  has 

(a)  If  the  trustee  try  to  avoid  service,  the  court,  on  being  satisfied  of  the  fact, 
will  make  the  order  without  service;  Ex  parte  Boughatn,  16  Jur.  325. 

The  trustee  who  is  served  with  the  petition  is  prima  facie  entitled  to  his  costs  ; 
Re  Erskine's  Trust,  1  Kay  &  Johns.  302  ;  Croyden's  Trust,  14  Jur.  54.  But  where 
the  trustee  has  paid  in  the  fund  abusively,  as  in  order  to  evade  a  bill  about  to  be 
filed  against  him,  he  will  have  no  costs  ;  Re  Waring,  16  Jur.  652  ;  and  see  Re 
Fagg's  Trust,  19  L.  J.  175.  And  where  he  has  transferred  the  fund  into  court 
without  suflBcient  reason,  though  he  may  be  allowed  the  costs  of  the  transfer,  he 
will  not  be  allowed  the  costs  of  appearing  on  the  petition  ;  In  re  Covington,  1  Jur. 
N.  S.  1157;  Ex  parte  Hemming,  2  Jur.  N.  S.  1186;  and  see  Croyden's  Trust,  14 
Jur.  54. 

If  the  person  who  pays  in  is  the  personal  representative  of  a  testator  whose  will 
creates  the  difficulty,  the  executor  must  take  his  costs  of  paying  in  the  fund  out 
of  the  testator's  estate,  but  the  subsequent  costs  come  out  of  the  fund ;  Re  Caw- 
thorne,  12  Beav.  56.  Secus,  however,  if  the  trust  fund  has  been  severed  from  the 
testator's  estate,  and  is  paid  in  by  a  trustee  and  not  by  the  executor;  Re  Lori- 
mer,  12  Beav.  521  ;  Ex  parte  Lucas,  V.  C.  Bruce,  6  July,  1849.  And  the  court 
cannot  direct  the  costs  to  be  paid  out  of  another  fund  also  paid  in  by  the  trustee, 
but  standing  to  a  different  account,  though  it  may  form  part  of  the  testator's  re- 
siduary estate,  and  therefore  he,  per  se,  liable  to  costs;  Re  Hodgson,  18  Jur.  786; 
and  of  course  not  out  of  the  testator's  residuary  estate,  where  it  has  not  been  paid 
in;  Re  Bartholomew's  Trust,  13  Jur.  380  and  see  Re  Sharpe's  Trusts,  15  Sim.  470; 
Re  Feltham's  Trusts,  1  Kay  &  Johns.  534  ;  though  where  five-sixteenths  of  a  fund 
paid  into  court  had  elapsed,  the  court  threw  the  whole  costs  on  the  lapsed  shares 
as  constituting  part  of  the  residue;  Ham's  Trust,  2  Sim.  N.  S.  106.  And  if  a 
trustee  deduct  his  costs  before  paying  in  the  fund,  the  court  has  no  jurisdiction  as 
to  the  sum  deducted;  In  re  Bloye's  Trust,  1  Mac.  &  Gor.  504;  2  Hall  &  Tw.  153. 
Whether  on  a  petition  by  tenant  for  life  for  payment  of  the  dividends,  the  costs 
come  out  of  the  corpus  or  out  of  the  income,  is  a  point  on  which  the  practice  in 
the  courts  of  different  judges  has  much  varied.  In  favour  of  payment  out  oi  cor- 
pus, the  following  cases  may  be  cited  :  Re  Ross,  1  Sim.  N.  S.  196,  V.  C.  Cran- 
worth  ;  Re  Field's  Trusts,  16  Beav.  146,  M.  R.  Sir  J.  Romilly ;  Re  Staple's  Trust, 
13  Jur.  273,  V.  C.  E.;  Re  Butler's  Trust,  16  Jur.  32,  M.  R,  Sir  J.  Romilly ;  and  in 
support  of  the  contrary  view.  Ex  parte  Fletcher,  12  Jur.  619 ;  17  L.  J.  169  ;  and 
Ex  parte  Peart,  12  Jur.  620  ;  17  L.  J.  168,  V.  C.  Knight  Bruce;  Re  Lorimer,  12 
Beav.  521,  Lord  Langdale ;  Bangley's  Trust,  16  Jur.  682,  and  Re  Ingram,  18  Jur. 
811,  y.  C.  Kindersley  ;  Re  Woodburu,  5  Weekly  Rep.  649,  M.  R.  423  ;  in  which 
case  it  was  decided  by  the  full  Court  of  Appeal  (notwithstanding  the  contrary 
opinion  previously  entertained,  see  3  K.  &  J.  41),  that  the  court  has  jurisdiction 
nnder  the  Trustee  Relief  Act  to  make  the  trustee  pay  costs.  And  see  Re  Jone.s, 
3  Drew.  679.  ^ 

{h)  If  a  person  not  appearing  by  the  affidavit  to  have  an  interest,  but  who  made 
a  claim,  be  served  with  the  petition,  and  disclaim  at  the  bar,  he  will  not  be  allowed 
nis  costs;  Re  Parry's  Trust,  12  Jur.  615. 


OF    TRUSTEES    OF    RENEWABLE   LEASEHOLDS.        34I 

first  named  a  place  where  he  may  be  served  with  any  petition  or  notice 
of  any  proceeding  or  order  of  the  court  relating  to  the  trust  fund. 

8.  Petitions  presented  and  affidavits  filed  under  the  said  act,  are  to  be 
entitled  in  the  matter  of  the  said  act  (10  &  11  Vict.  c.  96,)  and  in  the 
matter  of  the  particular  trust. 

The  10  and  11  Vict.  c.  96,  did  not  enable  the  major  part  of  trustees 
to  pay  in  or  transfer  a  fund  where  the  other  trustees  had  a  legal  control 
over  the  fund  and  would  not  concur.  Accordingly,  by  12  and  18  Vict. 
c.  74,  it  was  enacted,  that  where  moneys,  annuities,  stocks,  or  securities 
were  vested  in  persons  as  trustees,  executors,  administrators,  or  other- 
wise, and  the  major  part  of  them  were  desirous  of  transferring  the  funds 
into  court,  under  the  Trustee's  Relief  At,  the  court  on  a  petition  pre- 
sented under  the  said  act  for  that  purpose,  might  direct  the  transfer  by 
the  major  part,  without  the  concurrence  of  the  rest,  and  might  make  an 
order  on  the  necessary  parties  to  permit  such  a  transfer. 

By  an  order  of  7th  May,  1852,  it  was  directed,  that  where  the  affida- 
vit on  which  the  money  is  paid  in  did  not  state  it  to  be  unnecessary  to 
invest  the  money,  the  accountant-general  should  invest  it  in  three  per 
cent,  bank  annuities. 

*By  18  and  19  Vict.  c.  12-4,  s.  22,  any  trustee  or  other  person  r^qo9-i 
having  stock  or  money  in  his  hands  for  a  charity  may,  by  an  L  "J 
order  of  the  board  of  charity  commissioners,  transfer  the  stock  or  pay 
the  money  to  the  official  trustees  of  charitable  funds,  and  such  payment 
or  transfer  will  be  an  indemnity  to  the  person  paying  or  transferring. 


*CHAPTER   XIV.  [*383] 

THE   DUTIES   OF   TRUSTEES    OF   RENEWABLE   LEASEUOLDS. 

Upon  this  head  we  shall  first  examine  the  preliminary  question,  in 
what  cases  the  obligation  to  renew  is  imposed  by  the  settlement.  We 
shall  then  proceed  to  inquire  in  what  manner  the  trustees  are  to  levy  the 
fines  payable  upon  the  renewals. 

I.  In  what  cases  the  obligation  to  renew  is  imposed  by  the  settlement. 

It  might  naturally  be  considered,  that,  from  the  very  circumstance  of 
the  leaseholds  being  of  a  renewable  character,  a  settlement  of  them  to 
several  persons  in  succession  would  ^:>er  se  imply  a  right  in  the  remainder- 
man to  call  upon  the  tenant  for  life  to  contribute  to  the  fine;(a)  and 
indeed  Lord  Thurlow,  in  the  instance  of  a  lease  which  had  not  previously 
been  treated  as  renewable,  observed,  ''The  cases  in  which  the  nature  0/ 
the  estate  or  the  will  of  the  testator  compels  a  renewal,  appear  not  to  apply 
to  the  present:  where  there  is  710  such  custom,  or  direction,  it  is  in  the  dis- 
cretion of  the  tenant  for  life  to  renew  or  not. '76)     However,  it  seems  to 

(a)  See  White  v.  White,  4  Ves.  32. 

(i)  Nightingale  v.  Lawson,  1  B.  C.  C.  443. 


342  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

be  now  established  generally,  that,  in  a  devise  of  renewable  leaseholds 
without  the  interposition  of  a  trustee,  the  remainderman  cannot  oblige 
the  tenant  for  life  to  contribute  to  the  fine.(c')  And  so  it  was  determined 
even  where  the  devise  was  expressly  made,  "subject  to  the  payment  of 
aWJines,  and  as  they  became  due  yearly  *and  for  every  year."((Z) 
L  ^""^J  But  as  the  interest  given  is  in  its  nature  capable  of  renewal,  the 
court  says,  "  If  the  tenant  for  life  do  renew,  he  shall  not  by  converting 
the  new  acquisition  to  his  own  use  derive  an  unconscientious  benefit  out 
of  the  estate,"(e)  but,  on  the  remainderman's  contributing  to  the  fine, 
shall  be  regarded  as  a  trustee,  and  shall  hold  the  renewed  interest  upon 
the  trusts  of  the  settlement.^/) 

Next,  will  the  interposition  of  a  trustee  sufficiently  indicate  an  inten- 
tion of  obliging  the  tenant  for  life  to  renew  ?  "  In  a  devise  to  trustees," 
said  Lord  Hardwicke,  ''if  cestui  que  trust  for  life  be  one  of  the  lives,  I 
should  doubt  whether  such  cestui  que  trust  could  be  compellable  to  con- 
tribute; but  here  all  these  lives  were  strangers;  the  intent  of  the  testator 
certainljj  vkis,  that  the  lease  should  continue,  and  he  kept  on  foot,  and 
something  must  he  done  for  a  renexocd,  though  nothing  is  m,entioned."[g) 
Lord  Alvanley  on  one  occasion  alluded  to  the  point,  but  said  he  was  not 
called  upon  to  decide  it.(7i)  In  a  late  case  where  the  devise  was  to  trus- 
tees upon  trust  to  permit  one  to  receive  the  rents  for  life,  with  remain- 
ders over,  "subject  to  the  payment  of  the  rents  and  performance  of  the 
covenants  reserved  and  contained,  or  to  he  reserved  and  contained,  in 
the  present  or  future  leases,  whereby  such  premises  were  or  should  he 
held,  and  also  all  taxes,  fines,  and  expenses  attending  the  premises,"  it 
was  held  that  the  obligation  of  renewing  the  lease  was  imposed  by  the 
will.(i)  In  Lock  v.  LockfA;)  a  testator  had  devised  a  college  lease  of 
twenty-one  years  to  his  wife  for  life,  remainder  to  her  son,  she  paying 
lOZ.  per  annum  to  the  sou  during  her  life  ;  and  it  was  held,  that,  as  the 
testator  contemplated  the  continuance  of  the  lease  during  the  life  of  the 
wife,  she  was  bound  to  renew.  It  has  now  been  decided  by  Lord  Plun- 
kett,  in  Ireland,  that  a  settlement  with  the  mere  interposition  of  a  trustee 
does  not  impose  an  obligation  to  renew. (A 

r*^8'i"l  *Where  leaseholds  of  this  kind  are  made  the  suhjecf  of  a  mar- 
L  -1  riage  settlement,  it  may  be  argued,  that,  as  all  the  parties  who 
have  any  interest   given  them  are  purchasers,  the  enjoyment  of  the 

(c)  White  v.  White,  4  Yes.  32,  per  Lord  Alvanley;  S.  C.  9  Yes.  561,  per  Lord 
Eldon ;  Stone  v.  Theed,  2  B.  C.  C.  248,  per  Lord  Thurlow. 

{d)  Capel  V.  "Wood,  4  Russ.  500. 

h)  Stone  v.  Theed,  2  B.  C.  C.  248,  per  Lord  Thurlow. 

(/)  Nightingale  v.  Lawson,  1  B.  C.  C.  440  ;  Stone  v.  Theed,  2  B.  C.  C.  248, 
per  Lord  Thurlow;  Coppin  v.  Fernyhough,  2  B.  C.  C.  291 ;  Fitzroy  v.  Howard,  3 
Russ.  225. 

{g)  Yerney  v.  Yerney,  1  Yes.  429.  [h)  White  v.  White,  4  Yes.  33. 

(i)  Hulkes  v.  Barrow,  Taml.  264.  (k)  2  Yern.  666. 

{I)  O'Ferrall  v.  O'Ferrall,  Lloyd  k  Goold,  Rep.  temp.  Plunket,  TD.  In  Trench 
V.  St.  George,  1  Dru.  &  W^alsh,  417,  before  the  same  judge,  it  is  not  clear  whether 
his  lordship  did  or  not  consider  the  will  as  creating  an  obligation  to  renew, 
but  it  would  rather  appear  that  he  did.  The  remainderman  was  held  not  liable  to 
contribute  towards  the  renewal  fines  in  favour  of  the  tenant  for  life,  except  as  re- 
spected certain  fines  paid  subsequently  to  1819,  as  to  which  the  remainderman 
submitted  to  contribute.     See  pp.  454-456. 


OF    TRUSTEES    OF    RENEWABLE    LEASEHOLDS.        343 

tenant  for  life  should  be  consistent  with  that  of  the  other  subsequent 
takers. 

In  Lawrence  v.  Maggs,(wi)  the  case  of  a  marriage  settlement  with 
trustees  interposed,  but  without  any  mention  of  renewals,  Lord  North- 
ington  said,  "  The  husband  renewed  twice  ;  first,  when  he  put  in  his  own 
life,  which  was  of  no  benefit  to  those  in  the  settlement  who  were  to  take 
in  remainder  after  his  death.  He  renewed  a  second  time,  and  put  in 
his  wife's  life,  and  this  he  does  voluntarily  and  loitliout  there  being  any 
direction  for  it  in  the  settlement.  The  renewing  the  lease  with  any  other 
life  than  that  of  the  tenant  for  life  is  for  the  benefit  of  the  remainderman, 
and  he  is  to  be  deemed  a  creditor,  keeping  down  the  interest  during  his 
enjoyment."  The  plain  implication  from  which  remark  is,  that  in  his 
lordship's  opinion  the  tenant  for  life  was  considered  not  bound  to  renew. 

There  appears  to  be  no  other  authority  upon  the  subject  but  what  may 
be  collected  from  Sir  W.  Grant's  observations  in  Lord  Montfort  v.  Lord 
Cadogan.  "  The  proposition,"  he  said,  "  that  under  the  marriage  settle- 
ment it  was  the  duty  of  the  trustees  to  renew  does  not  admit  a  question. 
The  lease  being  made  the  subject  of  a  settlement,  it  was  clearly  meant 
that  it  should  be  kept  on  foot  by  renewals.  The  trustees  were  to  apply 
so  much  of  the  rents  and  profits  as  would  be  necessary  for  that  purpose. 
They  are  not  in  so  many  words  directed  to  renew,  but  the  means  being 
given,  and  the  purpose  expressed,  there  is  no  doubt  that  they  were  to 
apply  those  means  to  that  purpose. (h) 

But,  if  renewable  leaseholds  be  articled  to  be  settled  on  the  r^ggg-i 
*husband  for  life,  remainder  to  the  wife  for  life,  remainder  to  L  J 
the  children,  the  court  will,  in  executing  the  settlement,  insert  the 
proper  directions  for  renewals.  This,  it  seems,  was  directly  determined 
in  Graham  v.  Lord  Londonderry  ;(o)  and  the  case  of  Lawrence  v.  Maggs, 
before  Lord  Northington,  was  cited  in  Pickering  v.  Vowles,  before  Lord 
Thurlow,(p)  as  establishing  the  same  doctrine;  but  it  appears  by  the 
report  taken  from  Lord  Northington's  own  MS.  that  the  bar  were  mis- 
taken in  this.(^)  However,  Lord  Thurlow  himself  seems  to  have  enter- 
tained that  opinion,  for,  in  Pickering  v.  Yowles,  where  the  property  was 
articled  to  be  settled,  but  there  were  no  directions  for  renewals,  his  lord- 
ship said,  "  It  was  intended  the  lease  should  be  fully  estated,  and  that  the 
husband  and  wife  should  have  life  estates,  and  that  so  fully  estated  it 
should  go  to  the  children." 

A  direction  for  renewals  is  sometimes  in  the  form  of  a  discretionary 
power.  The  instrument  may,  indeed,  be  so  specially  worded,  that  the 
power  should  be  perfectly  arbitrary ;  but,  if  the  proviso  be  simply  that 
"  it  shall  be  lawful  for  the  trustees  to  renew,  from  time  to  time,  as  occa- 
sion may  require,  and  as  they  may  think  proper,"  the  clause  will  be  con- 
strued, not  as  conferring  an  option  upon  the  trustees  of  renewing  or  not, 

(m)  1  Ed.  453.  Search  has  been  made  for  this  case  in  the  R.  L.  through  seve- 
ral years,  but  the  decree  has  not  been  found. 

(n)  17  Ves.  488  ;  and  see  S.  C.  19  Ves.  638;  and  see  Trench  v.  St.  George,  1 
Dru.  &  Walsh,  417. 

(o)  Cited  Stone  v.  Theed,  2  B.  C.  C.  246. 

{p)  1  B.  C.  C.  197.     The  cause  does  not  appear  in  R.  L. 

{q)   1  Ed.  453. 


344       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

but  as  a  safeguard  against  any  unreasonable  demands  on  tbe  part  of  the 

lessor.  (/•) 

II.  We  next  proceed  to  inquire  in  wliat  manner  tlie  fines  for  renewals 

are  to  be  levied  by  the  trustees. 

Upon  this  subject  we  shall  first  advert  to  the  cases  where  the  settlor 
himself  has  specifically  marked  out  the  fund  from  which  the  fines  are  to 
be  raised,  and,  secondly,  we  shall  examine  the  rules  adopted  by  the 
court,  where  the  settlor  himself  has  omitted  to  declare  any  intention. 

First,  If  there  be  an  express  trust  to  provide  the  fines  for  renewals  out 
^^  of  the  "  rents,  issues,  and  profits,"  and  the  leaseholds  *are 
L  J  terms  of  years  not  determinable  on  lives,  so  that  the  times  of  re- 
newal can  be  certainly  ascertained,  it  will  be  the  duty  of  the  trustees  to 
lay  by  every  year  such  a  proportion  of  the  annual  income  as  against  the 
period  of  renewal  will  constitute  a  fund  sufficient  for  the  purpose. (s) 

If  the  trust  be  to  levy  the  fines  for  renewal  out  of  the  '<  rents,  issues, 
and  profits,  or  by  mortgage,"  it  was  held  in  a  case  before  Sir  J.  Leach((!) 
that  the  annual  rents  only  would  in  the  first  instance  be  applicable,  for 
he  considered  the  authority  to  mortgage  not  as  making  it  optional  with_ 
the  trustees  whether  they  should  or  not  affect  the  interests  of  the  remain- 
derman, by  throwing  the  charge  of  the  renewal  upon  the  corpus  of  the 
property,  but  as  given  for  the  protection  of  the  cestuis  que  trust  in  case 
the  amount  of  the  fine  should  not  be  otherwise  forthcoming,(«)  and  inti- 
mated that  should  the  trustees  be  under  the  necessity  of  mortgaging,  the 
court  would  call  back  from  the  party  in  possession  the  amount  of  the 
incumbrance  thus  temporarily  incurred. (^<)  However,  in  the  later  case 
of  Jones  V.  Jones,(v)  where  the  trustees  were  empowered  to  levy  the 
fines  "  by  and  out  of  the  rents,  issues,  and  profits,  or  by  mortgage,  or  by 
such  other  ways  and  means  as  should  be  advisable,"  the  court,  after 
observing  that  to  levy  the  fines  from  the  rents  would  throw  them  on  the 
tenant  for  life,  while  a  mortgage  would  be  oppressive  to  the  remainder- 
man, declined  to  give  any  opinion  whether  the  trustees  might  not,  in  the 
exercise  of  their  discretion,  have  determined  on  whom  the  burden  should 
fall ;  but  as  the  trustees  had  not  exercised  their  discretion,  it  was  open 
to  the  court  to  adjust  the  onus  amongst  the  parties  according  to  the  equi- 
table rule,  viz.  in  proportion  to  their  actual  enjoyment,  as  soon  as  it  could 
be  ascertained. (w)  And  in  Grreenwood  v.  Evans,(.x)  and  Reeves  v.  Cres- 
wick,(j/)  the  fines  were  to  be  raised  out  of  *the  rents,  issues,  and 
L  J  profits,  or  by  mortgage,  and  the  court  adopted  the  principle  of 
throwing  the  onus  on  the  successive  tenants  of  the  estate,  in  proportion 
to  their  actual  or  prospective  enjoyment.     The  leaseholds  were  for  lives, 

(r)  Milsington  v.  Mulgrave,  3   Mad.  491,  5   Mad.  472  ;  Mortimer  v.  Watts,  14 
Beav.  616 ;  and  see  Verney  v.  Verney,  1  Ves.  430  ;  Harvey  v.  Harvey,  5  Beav.  134. 
(s)  Lord  Montfort  v.  Lord  Cadogan,  17  Ves.  485;  S.  C.  19  Ves.  635  ;  see  Earl 
of  Shaftesbury  v.  Duke  of  Marlborough,  2  M.  &  K.  121. 

(0  Milsintown  v.  Earl  of  Portmore,  5  Mad.  471 ;  Milles  v.  Milles,  6  Ves.  761. 
(w)  5  Mad.  472,  per  Sir  J.  Leach ;  and  see  Shaftesbury  v.  Marlborough,  2  M.  & 
K. 121,  123. 

(v)  5  Hare,  440.  (w)  Jones  v.  Jones,  5  Hare,  440. 

(x)  4  Beav.  44. 

(y)  3  Y.  &  C.  715,  as  corrected  from  Reg.  Lib. ;  see  post,  p.  393. 


OF    TRUSTEES    OF    RENEWABLE    LEASEHOLDS.        345 

but  no  distinction  was  taken  on  that  account.  The  present  leaning  of 
the  courts  would  appear,  therefore,  to  "be,  to  consider  the  language  of  the 
instrument,  as  directing  only  the  temporary  mode  of  raising  the  fines, 
without  prejudice  to  the  ultimate  equitable  adjustment,  according  to  the 
principles  now  acted  upon  in  equity  in  ordinary  cases. 

If  the  trust  be  to  raise  the  fines  for  renewal  out  of  the  "  rents,  issues, 
and  profits,"  and  the  leaseholds  are  either  for  lives  or  for  years  deter- 
minable on  lives,  the  expenses  of  renewal  must  still  be  cast  upon  the 
annual  rents,  if  it  clearly  appear  that  such  were  meant,  though,  from  the 
uncertainty  of  the  time,  the  trustees  cannot  be  sure  they  shall  have  accu- 
mulated an  adequate  fund. 

But  the  expression  "  rents,  issues,  and  profits"  often  stands  by  itself, 
without  any  sufficient  indication  aliunde  that  annual  rents  were  intended, 
and  then  the  question  arises,  and  is  attended  with  great  difficulty,  whether 
the  fines  shall  be  raised  out  of  the  annual  rents  or  the  corpus. 

In  Stone  v.  Theed,(a;)  where  was  a  gift  to  trustees  of  freeholds  and 
leaseholds  and  personal  estate  upon  trust  ^subject  to  annuities)  for  a  per- 
son for  life,  with  remainders  over,  and  the  testator  <' directed  that  his 
trustees  should  from  time  to  time  renew  the  lease  and  add  new  lives,  if 
they  could  obtain  such  lease,  and  empowered  his  said  trustees  to  place 
out  at  interest  the  overplus  of  the  rents  of  his  real  and  leasehold  estates 
in  government  or  real  secvirities,"  Lord  Thurlow  held  that  the  annual 
rents  only  were  to  be  so  applied,  observing,  "  He  must  consider  the  thing 
bequeathed  to  be  the  subsisting  lease,  subject  to  renewal.  Suppose 
it  were  the  case  of  an  estate  to  which  an  embankment  was  necessary  : 
there  could  be  not  doubt  it  was  a  clear  indication  of  intention  that  the 
first  trust  was  to  keep  the  estate  productive  by  embankment  or  other 
buildings,  *or,  in  the  present  case,  by  a  very  strict  analogy,  by  r^ooq-i 
keeping  the  leases  renewed.  It  was  objected,  '  Could  the  testator  L  J 
be  understood  to  make  a  provision  which  might  exhaust  the  estate  of  the 
first  taker  V  But  the  expressions  were  as  strong  as  if  he  had  said 
expressly  he  meant  the  lease  to  be  kept  up,  and  he  must  be  understood 
to  sacrifice  the  intent  of  a  provision  for  the  first  taker  to  the  original 
intent  of  keeping  up  the  estate."  In  this  case  it  will  be  observed  that 
from  the  direction  to  accumulate  the  overplus  of  the  rents,  it  appeared 
the  testator  meant  the  annual  rents  only  to  be  applicable  to  the  renewals. 
In  Allan  v.  Backhouse(a)  a  testator  devised  leaseholds  and  freeholds 
to  trustees,  and  directed  the  fines  to  be  levied  "  out  of  the  rents  and 
profits  of  the  leaseholds,  or  out  of  the  rents  and  profits  of  the  freeholds." 
There  was  nothing  in  the  will  from  which  it  could  be  collected  that  annual 
rents  and  profits  only  were  meant,  and  Sir  T.  Plumer  considered  that,  as 
a  gross  sum  might  at  any  moment  be  demanded  by  the  lessor,  who  was 
not  bound  to  wait,  the  trustees,  by  the  expression  "  rents  and  profits," 
were  not  confined  to  the  annual  rents,  but  were  authorised  to  sell  and 
mortgage ;  and  that  the  tenant  for  life  and  the  remainderman  should 

(z)  2  B.  C.  C.  243  ;  see  the  case  stated  from  Reg.  Lib.,  with  some  remarks  in 
Jones  V.  Jones,  5  Hare,  451,  note  (a), 
(a)  2  V.  &  B.  65. 


34G 


LEWIN    0:s"    THE    LAW    OF    TRUSTS,    ETC. 


afterwards  contribute  to  the  fine  in  the  usual  proportions.     An  appeal 
was  presented  to  Lord  Eldon,  by  whom  the  decree  was  afl&rmed.(i) 

In  Shaftesbury  v.  Marlborough, (c)  where  there  was  a  devise  of  renew- 
able leaseholds  to  trustees  upon  trust  to  raise  the  fines  out  of  the  rents, 
issues,  and ijrofits,  and  subject  thereto  upon  the  same  trusts  as  the  tes- 
tator's freeholds,  Sir  J.  Leach  observed  upon  the  discrepancy  between 
Stone  V.  Theed,  and  Allan  v.  Backhouse, (f/)  and,  so  far  as  the  two  cases 
were  applicable  to  the  question  before  him,  followed  the  authority  of  the 
former.  "  The  first  trust,"  he  said,  "is,  that  the  trustees  by  and  out  of 
the  rents  and  profits  shall  from  time  to  time  renew  the  several  leases  as 
occasion  may  require  :  the  trust  as  to  the  renewals  overrides  all  beneficial 
interest  in  the  lease,  and  such  interest  cannot  take  effect  until  this  trust 
be  performed." 

*Playters  v.  Abbott(e)  was  a  special  case.  A  testator  devised 
L  '^  J  copyholds  upon  trust  "out  of  the  rents  and  profits,  or  by  mort- 
gage, sale  or  other  disposition"  of  the  trust  estate,  to  raise  the  fines  of 
admission  to  the  copyholds,  make  repairs,  pay  the  land-tax  and  quit- 
rents,  &c.,  and  Sir  J.  Leach  (considering  the  fine  on  admission  to  copy- 
holds to  stand  on  the  same  footing  with  fines  on  renewal  of  leases,)  deter- 
mined, that  as  no  rents  could  have  accrued  before  the  fines  were  demand- 
able,  viz.,  immediately  on  the  testator's  death,  the  meaning  was  referenda 
singula  singidis,  that  the  trustees  should  raise  the  fines  by  mortgage  or 
sale,  and  should  keep  down  the  annual  expenses  as  repairs,  land-tax,  and 
quit-rents  out  of  the  annual  rents:  that  the  tenant  for  life  was  only  called 
upon  to  keep  down  the  interest  on  the  mortgage  for  raising  the  fines  and 
not  to  contribute  to  the  principal,  for  the  trustees  might  clearly  have 
sold,  and  it  was  not  to  be  supposed  that  they  were  afterwards  to  impound 
the  accruing  rents  from  the  tenant  for  life  in  order  to  purchase  other 
lands  of  equal  value. 

In  Towuley  v.  Bond(/)  there  was  a  lease  for  lives  at  4s.  an  acre  rent, 
with  a  covenant  by  the  lessor  for  renewal,  on  payment  of  an  additional 
rent,  by  way  of  fine,  and  on  the  marriage  of  the  lessee,  the  lease  was 
vested  in  trustees  "  upon  trust  to  pay  and  discharge  the  yearly  rents 
reserved  and  payable  upon  any  renewal,"  and  subject  thereto,  upon  trust 
for  the  husband  for  life,  with  remainders  over,  and  the  court  apparently 
assumed  that  the  fines  were  raisable  out  of  the  annual  rents.(/) 

In  Creswick  v.  Reeves,((7)  the  trustees  were  empowered  to  levy  the 
fines  from  the  rents,  issues,  and  profits,  or  hi/  mortgage,  and  the  court 
apportioned  the  burthen  amongst  the  successive  tenants,  according  to  their 
prospective  enjoyment. 

In  Greenwood  v.  Evans,(/i)  the  trustees  were  directed  to  raise  the  fines 
out  of  the  rents,  issues,  and  ptrofits,  or  hy  mortgage,  and  the  court  de- 
cided that  the  successive  tenants  ought  to  bear  a  proportionate  part  of 

{b)  Jac.  631. 

(c)  2  M.  &  K.  111.  [d)  2  M.  &  K.  121. 

(e)  Id.  97 ;  and  see  Greenwood  v.  Evans,  4  Beav.  44. 

(/)  2  Conn.  &  Laws,  393. 

[g)  3  Y.  &  C.  "715,  corrected  from  Reg.  Book,  post  393.  [h)  A  Beav.  44. 


OF    TRUSTEES    OF    RENEWABLE    LEASEHOLDS.        347 

the  fine  according  to  the  benefit  derived  by  them  respectively  from  the 
renewal  of  the  lease. 

*In  Jones  v.  Jones/ A  the  trustees  were  directed  to  raise  the  (-:)cqni-i 
fines  by  and  out  of  the  rerits,  issues,  and  j^rofits,  or  hy  'mortgage,  L  J 
or  by  such  other  ways  and  means  as  should  be  advisable,  and  the  court 
apportioned  the  burthen  amongst  the  parties  according  to  the  actual 
benefit  derived  by  them. 

It  thus  appears  that  where  the  direction  is  to  raise  the  fines  out  of  the 
rents,  issues,  and  profits,  the  court  may  be  compelled,  by  the  express 
language  of  the  instrument,  to  throw  the  fines  upon  the  annual  rents, 
but  that  where  the  trustees  are  empowered  to  raise  the  fines  out  of  the 
rents,  issues,  and  profits,  or  by  mortgage,  or  otherwise,  the  discretion  to 
be  exercised  is  held  to  apply  only  to  the  temporary  means  of  raising 
the  fund,  and  the  court  apportions  the  burthen  according  to  the  general 
rule. 

On  a  reference  to  the  master  by  Sir  J.  Leach,  how  a  fund  for  payment 
of  fines  on  the  renewals  of  leaseholds  for  lives,  where  the  fines  were  to 
be  paid  from  the  rents,  could  best  be  secured,  the  master  proposed  in 
his  report,  that  each  of  the  lives,  upon  which  the  leases  were  held, 
should  be  insured  against  the  life  of  the  tenant  for  life  in  a  sum  suffi- 
cient to  cover  the  amount  of  the  fine,  the  premiums  upon  the  policies  to 
be  paid  out  of  the  annual  rents  and  profits. (/i;)  Upon  this  arrangement 
we  must  remark,  that  the  lives  of  the  cestiiis  que  vie  ought  to  have  been 
insured  unconditionalli/  and  not  against  the  life  of  the  tenant  for  life, 
for  the  estate  was  continually  deteriorating  as  the  lives  wore  out,  and  the 
remainderman  was  entitled  to  have  good  lives  or  equivalent  insurances. 
In  leaseholds  for  years,  the  remainderman  has  right  to  a  proportional 
accumulation  towards  the  payment  of  the  next  fine,  and  why  is  not  the 
same  principle  to  prevail  in  the  case  of  leasehold  for  lives?  Subject  to 
this  observation,  a  more  convenient  mode  of  raising  the  fines  could  not 
perhaps  be  suggested,  and  a  trustee  under  similar  circumstances  would 
scarcely  incur  a  risk  in  following  the  precedent  of  the  court. 

Where  freeholds  and  leaseholds  for  lives  are  limited  to  the  same  uses, 
it  is  usual,  from  the  difficulty  of  mortgaging  leaseholds  *vested  p^^^.^-. 
in  trustees  (who  will  not  covenant  beyond  their  own  acts,)  to  L  ~J 
insert  a  power  to  charge  the  freeholds  for  raising  the  fines;  and  it  would 
be  well  to  provide  that  the  freeholds  and  leaseholds  might  be  joined 
together  in  the  security,  and  that  the  loan  should  precede  other  charges, 
and  that  the  corpus  of  the  property  should  be  subject  to  the  mortgage, 
so  as  to  shut  out  the  question  of  apportionment  between  the  tenant  for 
life  and  the  remainderman. 

If  a  portion  of  the  amiual  rents  and  profits  be  destined  by  the  settlor 
to  defray  the  expenses  of  renewals,  then,  should  it  happen  from  the  un- 
willingness or  incapacity  of  the  lessor  that  no  renewal  can  be  obtained, 
the  sums  which  would  have  been  raised,  will  not,  it  seems,  merge  for  the 

'    (i)  5  Hare,  440. 

{k)  Earl  of  Shaftesbury  v.  Duke  of  Marlborough,  2  M.  &  K.  124;  and  see 
Greenwood  v.  Evans,  4  Beav.  44. 


348  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

benefit  of  the  tenant  for  life,  but  will  belong  to  the  person  who  would 
have  been  the  gainer  by  the  renewal. 0 

If  a  trustee,(m)  or  tenant  for  life,  in  the  situation  of  a  trustee,(?i)  fail 
in  his  duty  to  apply  the  given  fund,  the  remainderman  may  call  for  a 
compensation  from  such  trustee,  or  tenant  for  life,  or  their  assets.  But 
when,  by  the  permission  of  the  trustee,  the  tenant  for  life  has  been  in 
the  full  enjoyment  of  the  rents  and  profits  without  deduction  for  renew- 
als, though  the  trustee  is  primarily  answerable  to  the  remainderman,  yet 
the  tenant  for  life,  who  has  had  the  actual  pernancy,  must  make  it  good 
to  the  trustee,  (o) 

And  where  the  leaseholds  were  annually  renewable  for  twenty-one 
years,  and  the  custom  had  been  for  the  lessee  annually  to  grant  under- 
leases for  twenty  years,  the  tenant  for  life,  as  bound  to  pay  the  fines  to 
the  lessor  out  of  the  annual  rents  and  profits,  was  declared  entitled  to 
the  fines  paid  annually  by  the  under-lessees. (p) 

P^„„„  *Secondly.  It  often  happens  that  renewable  leaseholds  are 
L  -I  devised  to  trustees  with  a  direction,  either  expressed  or  implied, 
to  keep  the  leases  continually  renewed,  but  without  any  declaration  of 
intention  from  what  fund  the  settlor  meant  the  expenses  should  be 
levied. 

Where  this  is  the  case,  the  tenant  for  life  and  remainderman  may  pos- 
sibly agree  to  contribute  toward  the  fine  out  of  their  own  pockets,  at  the 
time  of  the  renewal ;  or  if  the  tenant  for  life  and  remainderman  cannot 
agree  to  join  in  raising  the  fine,  one  of  them  may  be  willing  to  advance 
the  whole  amount  jjj-o  tempore  out  of  his  own  pocket,  and  then  an  appor- 
tionment on  the  principles  adopted  by  the  court  may  be  compelled  be- 
tween the  tenant  for  life's  estate  and  the  remainderman  at  the  tenant  for 
life's  decease,  and  either  party  advancing  the  fine  will  have  a  lien  on  the 
renewed  lease  for  the  amount  expended  beyond  his  proportional  part.  If 
tenant  for  life  and  remainderman  will  neither  jointly  nor  either  of  them 
singly  advance  the  fine,  then  it  is  said  the  trustees  must  raise  the  ex- 
penses out  of  the  estate  by  way  of  mortgage  -Aq)  and  at  the  tenant  for 
life's  decease  the  apportionment  must  be  made  in  like  manner.  How- 
ever, a  mortgage,  where  neither  the  tenant  for  life  nor  remainderman 
will  make  the  advance,  is  more  easily  to  be  suggested  than  to  be  carried 
into  effect,  for  few  persons  would  be  disposed  to  lend  their  money  on 
such  a  security,  in  the  absence  of  any  express  power  to  mortgage. 
r>|coq_i-i  In  such  a  case,  therefore,  it  seems  necessary  to  have  recourse 
L         J  to  the  court.     Thus,  in  a  recent  case,M  where  leaseholds  *for 

[l)  See  Colegrave  v.  Manby,  6  Mad.  86,  87  ;  S.  C.  2  Russ.  252 ;  Bennett  v.  Col- 
ley,  5  Sim.  181  ;  2  M.  &  K.  231;  but  see  Richardson  v.  Moore,  and  Tardiff  t. 
Robinson,  cited  Colegrave  v.  Manby,  6  Mad.  82,  83. 

(to)  Lord  Montfort  v.  Lord  Cadogan,  17  Ves.  485;  S.  C.  19  Ves.  635;  and  see 
Wadley  v.  Wadley,  2  Coll.  11. 

(n)  Colegrave  v.  Manby,  6  Mad.  72 ;  S.  C.  2  Russ.  238. 

(o)  Lord  Montfort  v.  Lord  Cadogan,  ubi  supra  ;  Tovrnley  y.  Bond,  2  Conn.  & 
Laws,  403,  406,  per  Sir  E.  Sugden  ;  and  see  Wadley  v.  Wadley,  2  Coll.  11. 

ip)  Milles  Y.  Milles,  6  Ves.  761. 

(?)  Bee  Buckeridge  y.  Ingram,  2  Ves.  jun.  666;  Earl  of  Shaftesbury  v.  Duke  of 
Marlborough,  2  M.  &  K.  121  ;  Allan  y.  Backhouse,  2  V.  &  B.  72. 

(r)  Reeves  v.  Creswick,  3  Y.  &  C.  715.     It  is  stated  in  the  report  that  "there 


OF    TRUSTEES    OF   RENEWABLE    LEASEHOLDS.        349 

lives  were  devised  to  trustees  upon  trust  for  A.  for  life,  -with  remain- 
der to  her  children,  and  a  bill  was  filed  by  the  trustees  for  the  purpose 
of  having  the  expenses  of  renewal  raised,  the  following  scheme,  which 
had  been  approved  by  the  master,  was  directed  to  be  carried  into  effect. 
The  period  of  enjoyment  of  the  property  by  the  tenant  for  life  under 
each  of  the  old  leases,  being  the  joint  duration  of  her  own  life,  and  that 
of  the  then  surviving  cestui  que  vie  named  in  such  lease,  and  the  period 
of  her  enjoyment  of  the  property  under  each  corresponding  renewed 
lease  being  in  like  manner  the  joint  duration  of  her  life  and  those  of  the 
new  cestuis  que  vie,  or  the  longest  liver  of  them ;  the  diflFerence  between 
the  values  of  the  estates  of  these  two  periods  gave  the  benefit  derived  by 
the  tenant  for  life  from  the  renewals  in  question.  The  residue  of  the 
increased  value  of  the  property  necessarily  expressed  the  benefit  derived 
from  the  renewals  by  the  remainderman.  Calculations  were  accordingly 
made  by  the  actuary  of  an  insurance  ofiice,  upon  the  above  principles,  of 
the  benefit  derived  by  the  respective  parties  from  the  renewal  of  each 
lease,  and  the  fines  and  expenses  of  renewal  being  divided  in  the  propor- 
tions so  ascertained,  the  total  amount  which  thereupon  appeared  to  fall 
to  the  share  of  the  tenant  for  life,  was  directed  to  be  insured  upon  her 
own  life  for  the  purpose  of  providing,  upon  her  decease,  for  the  payment 
of  a  corresponding  part  of  the  principal  of  the  mortgage  debt  to  be  raised 
upon  the  property.  The  policy  of  insurance  was  oi'dered  to  be  assigned 
to  the  mortgagee,  and  directions  were  given  for  paying  the  premiums  on 
the  policy,  and  for  keeping  down  the  interest  on  the  entire  mortgage- 
debt  out  of  the  annual  rents  and  profits  of  the  estates.  The  only  obser- 
vation that  occurs  upon  the  propriety  of  this  arrangement  is,  whether 
the  tenant  for  life  ought  to  have  been  directed  to  keep  down  the  interest 
on  the  entire  mortgage-debt  out  of  the  annual  rents  as  between  n>«oQc-| 
*him  and  the  remainderman,  or  only  of  that  part  of  the  princi-  L  '  J 
pal  which  fell  to  the  share  of  the  tenant  for  life.  It  will  be  seen  also 
from  this  statement,  that  the  court  made  an  apportionment  according  to 
the  speculative  benefit,  a  course  which  the  court  has  since  disclaimed, 
except  for  the  purpose  of  raising  the  fine  in  prcesenti,  without  prejudice 
to  the  ultimate  apportionment  on  the  death  of  the  tenant  for  life,  when 
the  relative  benefits  derived  can  be  ascertained.  It  is  possible,  though 
it  does  not  so  appear  from  the  report,  that  the  decree  was  without  preju- 
dice to  an  ultimate  adjustment. 

were  no  funds  provided  for  the  purpose  of  renewal  by  the  testator's  will ;"  from 
which  it  might  be  supposed  that  the  will  was  altogether  silent  upon  the  subject, 
but  Mr.  Shapter,  who  had  occasion  to  consult  the  Reg.  Lib.,  has  obligingly  fur- 
nished me  with  the  following  extract  from  the  will :  "  It  shall  be  lawful  for  my 
said  trustees,  and  the  survivor  of  them,  and  the  heirs,  executors,  administrators 
and  assigns  respectively  of  such  survivor,  to  renew,  or  use  their  or  his  endeavours 
to  renew,  the  leases  for  the  time  being  of  such  part  of  my  said  estates  as  shall  be 
accustomably  renewable  from  time  to  time  and  as  often  as  occasion  shall  require, 
and  for  that  purpose  to  make  such  surrenders  of  the  then  leases,  or  any  renewed 
leases,  as  shall  be  requisite  and  necessary  in  that  behalf,  and  by  and  out  of  the 
rents,  issues  and  profits  of  the  premises,  the  leases  whereof  may  be  so  renewed,  or 
by  mortgage  tliereof,  to  raise  so  much  moneys  as  shall  be  sufficient  for  paying  the 
several  renewal  fines  and  other  necessary  charges  for  such  renewals." 

March,  1858.— 23 


350       LEWIN  ox  THE  LAW  OF  TRUSTS,  ETC. 

We  proceed  to  inquire  upon  what  principles  the  apportionment  is 
reo-ulated  upon  the  tenant  for  life's  decease. 

The  old  rule  of  contribution  was,  that  the  tenant  for  life  should 
advance  one-third,  and  the  remainderman  two-thirds  ;(s)  but  the  ques- 
tion was  put  by  Lord  Thurlow,  ''  Is  a  tenant  for  life  at  the  age  of  ninety- 
nine,  whose  title  accrued  in  possession  when  he  was  ninety-eight,  to  pay 
one-third — a  great  deal  more  than  any  possible  enjoyment  ?  According 
to  that  rule,  a  man  of  the  age  of  ninety-nine,  who  has  the  enjoyment 
only  of  ten  days,  pays  as  much  as  a  man  of  twenty-five. "(^) 

It  might  possibly  be  thought  reasonable  that  the  proportion  of  the 
expense  to  fall  upon  the  tenant  for  life  should  be  regulated  by  his  actual 
age  and  probable  duration  of  life ;  but  accident  might  render  such  a 
course  unjust  to  the  one  party  or  the  other,  as  the  tenant  for  life  hap- 
pened to  live  a  longer  or  shorter  period  than  was  allowed  by  the  calcula- 
tion,(M)  and  the  courts,  it  was  observed  by  Lord  Brougham,  have  made 
it  a  maxim  not  to  admit  an  estimate  which  the  events  may  afterwards 
falsify,  (y) 

*Lord  Alvanley  adopted  the  rule,(M5)  and  from  the  case  of 
L  J  Lawrence  V.  Maggs  it  would  seem  that  Lord  Northington  had 
before  acted  upon  the  same  principle, (x)  that  the  tenant  for  life  should 
merely  keep  down  the  interest  of  the  fine  :  but  Lord  Eldon  said,  "  he 
could  not  agree  to  that.  In  the  case  of  tenant  for  life  and  remainder- 
men in  tail  or  in/ee,  the  inheritance  being  charged  with  the  mortgage, 
it  was  fair  the  tenant  for  life  should  only  keep  down  the  interest,  for  the 
natural  division  was,  that  he  who  had  the  corjms  should  take  the  burden, 
and  he  who  had  only  the  fruit  should  pay  to  the  extent  of  the  fruit  of  the 
debt :  but  leases,  whether  for  lives  or  years,  were  in  their  nature  tempo- 
rary, and  therefore  the  position  that  the  tenant  for  life  was  bound  to 
pay  the  interest  was  to  be  understood  with  this  qualification,  that  he  was 
further  bound  to  contribute  a  due  proportion  of  the  principal  according 
to  the  benefit  he  derived  from  the  renewed  interest."(^) 

The  rule  now  in  operation  was  first  clearly  laid  down  by  Lord  Thur- 
low in  Nightingale  v.  Lawson,(2;)  a  case,  said  Lord  Eldon  who  was  one 
of  the  counsel  in  it,  to  which,  from  the  intricacy  of  the  subject,  the 
reports  have  failed  to  do  justice. (a) 

The  circumstances  may  be  very  briefly  stated  as  follows  : — A  widow, 
tenant  for  life  of  a  term  which  had  twelve  years  to  run,  renewed  for  a 
further  term  of  twenty-eight  years,  to  commence  from  the  expiration  of 

(s)  Earl  of  Shaftesbury  v.  Duke  of  Marlborough,  2  M.  &  K.  118,  per  Sir  J. 
Leach;  Lock  t.  Lock,  2  Vern.  666,  R.  L.  1*710,  B.  fol.  120  ;  Verney  v.  Verney,  1 
Ves.  428 ;  Limbroso  v.  Francia,  cited  ib. ;  Graham  v.  Lord  Londonderry,  cited 
Stone  T.  Theed,  2  B.  C.  C.  246  ;  and  see  Rowel  v.  Walley,  1  Ch.  Rep.  218  ;  Ballet 
v.  Sprainger,  Pr.  Ch.  62  ;  Cornish  v.  Mew,  1  Ch.  Ca.  271. 

(t)  See  White  v.  White,  9  Ves.  555. 

(m)  Earl  of  Shaftesbury  v.  Duke  of  Marlborough,  2  M.  &  K.  119,  per  Sir  J. 
Leach. 

M  Bennett  v.  Colley,  2  M.  &  K.  234. 

(w)  Buckeridge  v.  Ingram,  2  Ves.  jun.  652,  see  666 ;  White  v.  W^hite,  4  Ves.  24, 
see  33.  (a;)   i  Ed.  453,  see  455. 

(y)  White  V.  White,  9  Ves.  560.  (z)  l  B.  C.  C.  440. 

(a)  White  v.  White,  9  Ves.  556. 


OF    TRUSTEES    OF    RENEWABLE    LEASEHOLDS.        351 

the  twelve  years,  and  afterwards  renewed  for  the  additional  term  of 
fourteen  years  to  commence  from  the  expiration  of  the  twenty-eight 
years.  The  widow  lived  through  the  original  term  of  twelve  years,  and 
through  nine  of  the  renewed  term  of  twenty-eight  years.  The  question 
was  raised  after  the  death  of  the  widow,  in  what  proportions  the  tenant 
for  life  and  the  remainderman  should  contribute  to  the  fines.  The  fol- 
lowing points  were  resolved  by  Lord  Thurlow,  after  a  very  anxious,  fre- 
quent, and  grave  consideration  of  the  subject,(i)  and  have  ever  since 
been  acquiesced  in  by  the  courts. 

*1.  "  That,  as  the  widow  had  lived  nine  years  after  the  expi-  pony-i 
ration  of  the  twelve  leaving  nineteen  years  to  run  of  the  twenty-  L  -J 
eight,  the  master  ought  to  take  the  sum  paid  by  her  for  the  renewal  of 
the  lease  as  the  value  of  the  term  purchased,  that  is,  of  the  term  of 
twenty-eight  years,  to  commence  at  the  expiration  of  the  twelve  years ; 
he  should  then  consider  the  value  of  the  term  of  nine  years  after  the 
existing  term,  and  what  the  term  of  nineteen  years  after  the  existing 
term  and  the  nine  years  was  worth,  and  the  latter  was  the  proportion  to 
be  paid  by  the  remainderman. "(c)  Upon  which  resolution  Lord  Eldon 
thus  comments  : — "  It  was  first  considered,"  he  said,  "  what  the  interest 
of  the  tenant  for  life  was  in  that  term  which  had  to  run  out  at  the  time 
of  the  renewal,  and  then  what  benefit  the  tenant  for  life  had  received  by 
the  enjoyment  of  the  renewed  term  from  the  period  when  the  old  term 
would  have  expired  :  and  Lord  Thurlow  determined  that  the  remainder- 
man took  that  interest  in  the  renewed  term  which  was  ^dtra  so  much  of 
the  renewed  term  as  expired  in  the  lifetime  of  the  person  who  renewed, 
and  the  value  of  that  interest  he  made  the  remainderman  pay."((:7) 

2.  "  That  as  to  the  kind  of  interest  to  be  allowed,  smiple  interest 
would  not  be  a  satisfaction,  as  the  widow  had  laid  out  her  money  totally, 
and  the  value  of  the  lease  was  calculated  upon  the  ground  of  compound 
interest :  compound  interest  was  therefore  to  be  computed  upon  the  pro- 
portional value  of  the  nineteen  years'  term  to  the  whole  expense  of 
renewal."  (e) 

3.  "That  as  to  the  rate  of  interest,  in  computing  compound  interest, 
you  go  upon  the  idea  that  the  interest  is  paid  upon  the  exact  day  and 
immediately  laid  out ;  but  as  this  was  impossible,  it  would  be  sufiicient 
to  compute  interest  at  4  per  cent."(/) 

4.  '<■  That  such  interest  was  only  to  be  paid  till  the  widow's  death,  for 
after  that  her  executors  had  the  demand  upon  the  *remainder-  r^^ggg-. 
man,  and  it  became  a  common  debt,  and  must  carry  simple  L  -J 
interest  only."((7) 

5.  "  With  respect  to  the  second  renewal,  as  the  widow  had  not  lived 
to  enjoy  any  part  of  that  term,  her  executors  were  entitled  to  the  whole 

(6)  See  White  v.  White,  9  Ves.  560. 

(c)  See  Coppin  v.  Fernyhoiigh,  2  B.  C.  C.  291 ;  Barnard  v.  Ilcaton,  cited  White 
V.  White,  4  Ves.  29  ;  Playters  v.  Abbott,  2  M.  &  K.  108  ;  Earl  of  Shaftesbury  v. 
Dulce  of  Marlborough,  2  M.  &  K.  118  ;  Lanauze  v.  Malone,  3  Ir.  Ch.  Re.  354. 

(d)  White  V.  White,  9  Ves.  558. 

(e)  See  White  v.  White,  4  Ves.  35,  36 ;  S.  C.  9  Ves.  557,  558. 
(/)  See  Giddings  v.  Giddiugs,  3  Russ.  260. 

[g)  See  Giddings  v.  Giddings,  3  Russ.  260. 


352       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

of  the  expenses,  with  interest  to  be  computed  on  the  same  principle  as 

before."(^') 

In  this  case  it  will  be  observed,  the  tenant  for  7i/e  had  disbursed  the 

fine,  and,  the  payment  being  a  charge  upon  the  property,  the  widow  was 

in  no  danger  of  eventually  losing  her  demand.     But  where  the  tenant 

for  life  has  not  the  means  of  renewing,  but  the  remainderman  comes 

forward  with  the  money,  if  the  contribution  is  to  be  suspended  till  the 

death  of  the  tenant  for  life,  it  may  happen,  that,  when  the  proportions 

can  at  last  be  ascertained,  the  estate  of  the  tenant  for  life  may  be 

insolvent,  and  so  the  contribution  be  lost.    "  I  admit,"  says  Lord  Eldon, 

"  there  is  this  difficulty  in  the  case  j  but  perhaps  from  the  nature  of 

the  thing  it  cannot  be  helped  :  the  utmost  extent  you  can  go  is  to  make 

the  tenant  for  life  give  security  for  the  sum  which  may  eventually  be 

due."(i) 

There  occurs,  also,  this  other  difficulty,  viz.  how  to  apply  the  principle 
to  the  case  of  leaseholds  for  lives.  The  new  cestui  que  vie  may  die  in 
the  lifetime  of  the  original  cestui  que  vie,  and  then  no  actual  benefit 
accrues  either  to  the  tenant  for  life  or  to  the  remainderman.  If  the 
tenant  for  life  paid  the  fine,  is  the  remainderman  to  contribute  nothing, 
because  he  took  no  benefit  ?  If  the  remainderman  paid  the  fine,  is  the 
tenant  for  life  to  contribute  nothing,  because  he  can  excuse  himself 
under  the  same  plea  ? 

From  the  nature  of  leaseholds  for  lives  it  seems  difficult  to  discover 
any  better  principle  than  one  of  the  following  : — 

First,  That  the  tenant  for  life  and  the  remainderman  should  contribute 
according  to  their  chance  ofhenefit  at  the  time  of  the  renewal,  in  which 
case  the  proportions  would  be  settled  thus : — The  chance  of  benefit  to 
the  tenant  for  life  is  the  value  of  the  new  life  commencing  from  the 
r*^QQT  <^^^th  of  the  last  surviving  *original  cestiii  que  vie,  and  deter- 
L  J  mining  on  the  death  of  the  tenant  for  life.  The  chance  of  bone- 
fit  to  the  remainderman  is  the  value  of  the  new  life  commencing  on  the 
death  of  the  original  cestuis  que  vie  after  the  death  of  the  tenant  for  life. 
In  the  proportion  of  these  two  values  would  be  the  respective  contribu- 
tions. 

Secondly,  That  the  remainderman's  proportion  should  be  regulated  by 
the  actual  benefit  derived.  Thus,  if  the  new  cestui  que  vie  die  in  the 
lifetime  of  any  of  the  original  cestuis  que  vie  or  of  the  tenant  for  life, 
the  remainderman  takes  no  benefit  and  has  nothing  to  pay.  In  this  case 
the  tenant  for  life  is  the  loser.  Should  the  new  cestui  que  vie  survive 
the  original  cestuis  que  vie  and  also  the  tenant  for  life,  the  value  of  the 
new  life  should  be  taken  at  the  tenant  for  life's  death,  and  that  interest 
be  paid  for  by  the  remainderman.  It  might  happen  that  the  original 
cestuis  que  vie  and  the  tenant  for  life  might  die  soon  after  the  renewal, 
and  then  the  estimated  value  of  the  new  life  would  be  greater  than  the 
whole  fine.  In  such  a  case  the  tenant  for  life  would  be  a  gainer.  Thus 
the  tenant  for  life  might  sometimes  be  a  gainer,  sometimes  a  loser  :  the 

[h)  Coppin  v.  Fernyhough,  2  B.  C.  C.  291. 

(«•)  See  White  v.  White,  9  Yes.  558,  559 ;  Earl  of  Shaftesburv  y.  Duke  of  Marl- 
borough, 2  M.  &  K.  122. 


OF    TRUSTEES    OF    RENEWABLE    LEASEHOLDS.        353 

remainderman  would  never  either  gain  or  lose,  but  would  pay  the  exact 
value  of  the  interest  which  he  actually  took. 

The  authority  of  Lord  Eldon  upon  the  subject  is  so  obscurely  worded, 
that  little  light  can  be  gained  from  it. 

"There  is  no  difference,"  he  said,  "between  a  renewable  term  for 
years  and  a  lease  for  lives  renewable.  In  the  former  case  the  difficulty 
does  not  arise  so  much,  upon  the  probable  value  of  a  term  certain,  as  upon 
an  estate  for  lives  in  estimating  what  is  the  value  of  that  life  which  may 
survive  the  three  cestnis  que  vie,  and  that  interest  to  be  paid  for  by  the 
remainderman,  as  the  case  may  happen  that  one,  two,  or  three  lives  may 
determine  in  the  life  of  the  man  entitled  to  the  beneficial  interest."(A;) 

In  the  recent  case  of  Jones  v.  Jones,(^)  before  Yice-Chancellor  Wig- 
ram,  and  involving  leaseholds  for  lives  as  well  as  leaseholds  for  years,  and 
where  the  fines  were  to  be  raised  out  of  the  rents  or  by  mortgage,  or  by 
such  other  means  as  should  be  advisable,  the  mode  of  raising  and  ulti- 
mately apportioning  the  *fines  was  fully  considered,  and  the  im-  r*  <  Qr|-i 
portance  of  the  subject  may  justify  a  somewhat  lengthened  ex-  *-         -■ 
tract  from  the  judgment.     "  The  rule,"  said  the  vice-chancellor,(??i)  "is 
that  the  parties  are  to  pay  in  proportion  to  their  enjoyment,  by  which  I 
understand  their  actual  enjoyment  to  be  meant,  and  not  an  extent  of  en- 
joyment to  be  determined  by  mere  speculation,  or  by  a  calculation  of  pro- 
babilities, and  the  question  is,  how  that  apportionment  is  to  be  effected. 
If  the  tenant  for  life  is  willing  to  take  upon  himself  to  renew,  it  appears 
to  me  according  to  the  cases  there  is  very  little  difficulty  in  carrying  out 
the  transaction.     He  will  enjoy  the  estate  during  his  own  life,  and  when 
the  actual  period  of  his  enjoyment  is  ascertained,  his  estate  will  have  a 
lien  upon  the  residue  of  the  term  for  any  overpayment  which  may  have 
been  made.     The  tenant  for  life  having  paid  the  whole,  if  he  has  not 
the  whole  enjoyment  his  estate  will  have  a  lien  for  whatever  ought  to  be 
paid  by  the  remainderman.     The  case  is  one  of  much  greater  difficulty 
where  the  renewal  is  made  by  the  remainderman,  or  (which  as  to  this 
difficulty  is  the  same  thing,)  where  the  trustee  is  to  raise  the  money  and 
charge  it  on  the  corpus.     In  that  case,  unless  some  course  be  taken  to 
protect  the  interest  of  the  remainderman,  the  tenant  for  life  may  enjoy 
the  estate  during  his  whole  life  without  bearing  any  greater  charge  than 
the  interest  on  the  debt  created  by  the  renewal,  and  he  may  leave  no 
assets  to  pay  his  proportion  of  the  principal  money.     That  inconvenience 
may  perhaps  be  avoided  by  requiring  the  tenant  for  life  to  give  security. 
The  late  cases  of  Greenwood  v.  Evans,(»)  and  Reeves  v.  Creswick,(o) 
are  authorities  which  recognize  the  course  of  giving  security  as  a  course 
proper  to  be  pursued  where  no  other  means  are  open  for  providing  for  a 
proper  apportionment.     It  is  not  to  be  disputed  that  there  is  a  practical 
difficulty  even  in  this  mode  of  proceeding ;  the  difficulty  is  in  determin- 
ing for  what  sum  the  tenant  for  life  is  to  give  security.     If  he  gives 
security  for  the  whole  amount  of  the  fine,  because  by  possibility  he  may 
enjoy  the  whole  benefit  resulting  from  the  renewal,  the  difficulty  is  got 

{k)  White  V.  White,  9  Yes.  559.  (/)  5  Hare,  440. 

\m)  Page  496.  («)  4  Bear.  44. 

(o)  3  Y.  &  C.  715. 


354       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

over;  but  the  tenant  for  life  may  not  be  able  to  give  security  for 
L  -i  *the  whole  although  he  might  for  a  part,  and  how  is  the  court 
in  such  a  case  to  deal  with  the  interests  of  the  parties  ?  I  do  not  mean 
to  give  any  opinion  as  to  the  way  in  which  the  court  would  proceed  in 
cases  that  might  be  suggested,  but  in  considering  what  is  proposed  as  a 
general  rule,  it  is  right  not  to  disregard  the  inconvenience  or  difficulty 
which  in  some  cases  might  arise  in  its  application.  I  do  not,  however,  think 
that  the  difficulty  to  which  I  have  adverted  is  insuperable.  The  tenant 
for  life  may  in  the  first  instance  be  required  to  give  security  for  an 
amount  calculated  upon  the  assumption  that  his  life  will  last  during  a 
portion  of  the  renewed  lease.  If  he  should  die  within  the  time  during 
which  it  was  assumed  that  his  life  would  last,  the  security  would  of  course 
be  more  than  sufficient  to  satisfy  his  proportion  of  the  fine,  and  it  would 
be  void  for  the  excess.  If  he  outlived  that  time  he  might,  if  necessary, 
be  called  upon  to  give  a  further  security  to  cover  the  additional  propor- 
tion then  to  be  attributed  to  him.  In  the  case  of  Allan  v.  Backhouse, (/>) 
and  other  cases,  it  would  appear  that  the  party  was  not  called  upon  in  the 
first  instance  to  pay  the  whole,  but  it  was  apportioned,  and  I  presume  on 
the  principle  that  he  should  be  required  to  pay  the  apportioned  sum  in 
the  first  instance  without  prejudice  to  the  question  whether  he  might  not 
ultimately  be  liable  to  pay  more.  It  appears  to  me,  being  guided  by  the 
light  which  the  cases  afforded  me,  proper  to  declare  that  each  party  is  to 
bear  the  burden  of  the  renewal  in  the  proportion  of  his  actual  enjoy- 
ment of  the  estate.  There  will  be  a  direction  for  the  tenant  for  life  to 
keep  down  the  interest,  and  a  reference,  as  in  Allan  v.  Backhouse, (p) 
to  ascertain  what  proportion  of  the  fine  was  properly  payable  by  him. 
This  inquiry  is  necessarily  by  anticipation.  There  will  then  be  a  refer- 
ence, as  in  Greenwood  v.  Evans,(5)  for  the  master  to  approve  of  a  se- 
curity, and  these  directions  must  be  followed  by  a  declaration  that  the 
reference  and  security  are  to  be  without  prejudice  to  the  question  whether 
the  tenant  for  life  may  or  may  not  be  liable  to  pay  less  or  more  than  the 
sum  for  which  the  security  is  given."  The  doctrines  enunciated  in  this 
r*4021  ^^^^  have  been  since  *approved  as  sound  law,  and  the  tenant  for 
'-  -I  life,  where  the  fine  has  been  paid  out  of  the  trust  fund,  has  been 
ordered  to  give  security  for  his  contribution  to  the  fine  in  proportion  to 
the  benefit  which  he  should  derive  from  the  new  life.(r) 

Where  the  legal  estate  of  renewable  leaseholds  is  devised  without  the 
interposition  of  a  trustee,  but  the  testator  at  the  same  time  directs,  either 
expressly  or  by  implication,  that  the  leases  should  be  renewed,  the  tenant 
for  life  is  then  himself  a  trustee,(s)  and  as  such  is  compellable  to  obtain 
renewals,(^)  and  ought  before  applying  for  a  renewal  to  consult  the  re- 
mainderman, (m) 

It  has  been  said,  that  if  from  the  threats  or  acts  of  the  tenant  for  life 
there  appears  the  intention  of  suS"ering  the  lease  to  expire,  the  court 

(p)  2  Ves.  &  Be.  65.  (q)  4  Beav,  44. 

{r)  Huddlestone  v.  Whelpdale,  9  Hare,  '775. 

W  White  V.  White,  5  Ves.  554. 

(t)  Lock  V.  Lock,  2  Vern.  666 ;  and  see  "White  v.  White,  4  Yes.  24. 

(m)  White  V.  White,  5  Ves.  554. 


OF    CONTINGENT    REMAINDERS.  355 

would  appoint  a  receiver  of  the  estate  to  provide  a  fund  for  the  re- 
newal ;(«)  and  that  if  the  tenant  for  life  has  already  allowed  the  period 
of  renewal  to  pass,  the  rents  and  profits  may  be  sequestered  for  either 
procuring  a  renewal,(w)  or  finding  the  remainderman  a  compensation. (x) 
But  no  suit /or  damages  can  be  efi"ectually  prosecuted  before  the  tenant 
for  life's  decease ;  for  so  long  as  it  remains  uncertain  how  much  of  the 
renewed  term  will  survive  to  the  remainderman,  the  amount  of  the  in- 
jury done  to  him  cannot  be  ascertained. (^)  It  follows  that  the  mere  for- 
bearance of  the  remainderman  to  bring  a  suit  during  the  continuance  of 
the  life  estate  cannot  be  construed  into  laches  or  acquiescence. (2) 

We  may  remark  in  conclusion,  that  the  admission  fines  of  trustees  of 
copyholds  are  regulated  by  the  same  principles  as  fines  on  renewal  of 
leaseholds.  Thus  a  testator  devises  copyholds  to  A.  and  his  trustees  upon 
trust  for  B.  for  life,  with  remainder  to  C.  in  fee.  A.  pays  a  fine  on  his 
admission  and  dies.  His  *heir  is  admitted  and  pays  a  fine  and  r^,AM-i 
dies,  and  his  heir  again  is  admitted  and  pays  a  fine.  Thus  the  L  -• 
fine  for  the  admission  of  the  trustee  is  a  kind  of  purchase-money  for  an 
estate  for  the  life  of  that  trustee.  The  burthen  must  of  course  be  borne 
by  the  cestuis  que  trust  of  the  estate,  and  they  contribute  to  the  fines  in 
proportion  to  their  actual  enjoyment,  as  in  the  case  of  leaseholds. (<») 
These  observations  are  on  the  assumption  that  the  will  or  settlement 
contains  no  express  directions  how  the  fines  are  to  be  raised. 


*CHAPTER     XV.  [*404] 

DUTIES  OF  TRUSTEES  TO  PRESERVE  CONTINGENT  REMAINDERS. (a«) 

Settlements  which  embrace  limitations  to  trustees  to  preserve  con- 
tingent remainders  are  usually  penned  in  one  of  the  two  following  forms  : 
either,  First,  the  estate  is  limited  to  the  use  of  the  parent  for  99  years 
if  he  should  so  long  live,  with  remainder  to  the  use  of  trustees  and  their 
heirs  during  the  life  of  the  parent  upon  trust  to  preserve  contingent 
limitations  with  remainders  over ;  or  to  the  use  of  trustees  and  their  heirs 
during  the  life  of  the  parent  in  trust  for  him  with  remainders  over ;  or, 
Secondly,  it  is  settled  to  the  use  of  the  parent  for  life,  with  remainder  to 
trustees  and  their  heirs  during  the  life  of  the  parent  upon  trust  to  pre- 
serve contingent  limitations,  with  remainders  over. 

In  the  first  form  of  settlement  the  object  in  view  by  the  interposition 
of  trustees  is  not  merely  to  preserve  the  contingent  estates  from  the 

(v)  See  Bennett  v.  Colley,  2  M.  &  K.  233. 

(w)  See  S.  C.  5  Sim.  192. 

{x)  S.  C.  5  Sim.  181 ;  2  M.  &  K.  225  ;  and  see  Lord  Montfort  v.  Lord  Cadogan, 

17  Ves.  490.  ,  ,  c   r. 

(y)  Bennett  v.  Colley,  5  Sim.  181 ;  S.  C.  2  M.  &  K.  225.  {z)  S.  C. 

\a)  See  Playters  v.  Abbott,  2  M.  &  K.  108 ;  Bull  v.  Birkbeck,  2  Y.  &  C.  Ch.  Ca. 
447  ;  Jones  v.  Jones,  5  Hare,  461. 

{aa)  The  law  upon  the  subject  has  since  been  most  materially  altered  by  recent 
acts,  as  will  be  noticed  at  the  end  of  the  chapter. 


356       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

parent's  legal  power  to  destroy  them,  but  also  to  prevent  the  exercise  of 
any  undue  influence  of  the  father  over  the  son,  which,  if  the  father  were 
tenant  of  the  first  freehold,  he  might  be  disposed  to  practise,  in  order  to 
induce  the  son  to  join  in  barring  the  entail  for  purposes  not  authorised 
by  the  spirit  of  the  settlement.(i) 

In  the  second  form  it  is  imposed  upon  the  trustees,  as  before,  to  preserve 
the  contingent  limitations ;  but  as  the  freehold  in  possession  is  vested  in 
the  parent,  the  trustees  can  have  no  power  to  prevent  a  recovery  by  the 
father  and  son  so  *soon  as  the  son  has  attained  the  age  of  twenty- 
L  -I  one;  but  should  the  tenant  for  life  commit  a  forfeiture,  and  so 
the  freehold  in  possession  become  vested  in  the  trustees,  it  would  then 
be  their  duty,  though  the  settlor  himself  might  not  have  contemplated 
such  a  purpose,  not  to  allow  the  interests  of  the  child  to  be  prejudiced 
by  any  improper  exercise  of  the  authority  of  the  parent. 

The  duties  of  these  trustees  may  be  regarded,  first  as  the  case  stands 
before  the  eldest  son  has  attained  twenty-one ;  and,  secondly,  as  the 
obligations  of  the  trustees  are  varied  by  the  occurrence  of  that  event. 

I.  Until  the  eldest  son  has  attained  ticenty-one  the  duty  of  the  trustees 
not  to  join  in  any  act  to  destroy  the  contingent  remainders  is  express 
and  imperative. i^A  "When  trustees,"  it  was  once  observed  by  the 
court,  "are  appointed  to  preserve  an  estate  in  a  family  and  for  no  other 
purpose,  and  they,  instead  of  pursuing  it,  do  a  wilful  act  with  an  intent 
and  in  order  to  desti'oy  it,  how  can  this  be  otherwise  than  a  plain  breach 
of  trust,  or  how  can  it  be  rendered  clearer  than  by  barely  putting  the 
case  ?  Should  the  court  hold  it  no  breach  of  trust,  or  pass  it  by  with 
impunity,  it  would  be  making  proclamation  that  the  trustees  in  all  the 
great  settlements  in  England  were  at  liberty  to  destroy  what  they  had 
been  entrusted  only  to  preserve.  Where  an  estate  is  limited  to  A.  for 
life,  remainder  to  his  first  and  other  sons  in  tail,  though  it  be  a  plain 
wrong  and  tort  in  A.  to  do  any  act  which  will  destroy  those  remainders 
before  the  birth  of  a  son,  notwithstanding  his  legal  power  of  doing  so, 
yet,  as  in  this  case  there  is  no  trustee,  there  can  be  no  trust,  nor  conse- 
quently any  breach  of  trust,  and  therefore  a  court  of  equity  may  have  no 
cognisance  of  such  a  case  nor  handle  for  relief,  the  matter  being  left 
purely  at  the  common  law.  To  prevent  this  inconvenience,  the  remedy 
of  appointing  trustees  was  invented  on  purpose  to  disable  the  tenant  for 
r*4nfil  ^^^^  ^'(Q'iSL  doing  such  an  injury  to  his  issue,  which  is  not  a  very 
■-  -J  *old  invention.  Now  as  it  was  a  tort  in  the  tenant  for  life  where 
there  were  no  trustees  to  destroy  contingent  remainders,  so  must  it  more 
plainly  be  one  in  trustees  to  join  in  the  destruction  of  them  being  con- 
rary  to  their  trust,  upon  which  account  only  is  such  act  of  theirs  punish- 
able in  a  court  of  equity." (cZ) 

It  was  formerly  contended,  that  in  settlements  upon  marriage,  or  for 
other  valuable  consideration,  it  would  be  a  breach  of  duty  to  join  in  the 

(6)  See  Woodhouse  v.  Hoskias,  3  Atk.  24  ;  Woolmore  v.  Burrows,  1  Sim.  527. 

(c)  Mansell  v.  Mansell,  2  P.  W.  678;  Moody  v.  Walter,  16  Yes.  302  and  307,  per 
Lord  Eldon;  Biscoe  v.  Perkins,  1  V.  &  B.  491,  per  eundem;  Tipping  v.  Piggott,  1 
iiq.  Ca.  Ab.  385,  per  Lord  Harcourt ;  Pye  v.  Gorge,  1  P.  W.  128,  per  eundem;  S. 

{d)  Mansell  v.  Mansell,  2  P.  W.  680. 


OF    CONTINGENT    REMAINDERS.  357 

destruction  of  the  remainders,  but  that  in  limitations  created  by  will  or 
other  voluntary  settlement  the  same  doctrine  was  not  applicable ;  but  in 
Mansell  v.  Mansell(e)  the  distinction  was  unhesitatingly  over-ruled,  for 
"  whether  the  trustee  did  it  on  a  voluntary  conveyance  or  not  was  imma- 
terial, for  still  every  trustee  ought  to  be  faithful  to  his  trust."  {/) 

If  the  trustees  destroy  the  contingent  remainders  in  favour  of  a  volun- 
teer or  purchaser  with  notice,  the  specific  estate  may  be  followed  into  the 
hands  of  such  volunteer  or  purchaser ;  but  if  the  trustees  pass  the  proper- 
ty into  the  hands  of  a  purchaser  without  notice,  then,  as  the  identical 
estate  cannot  be  recovered,  the  trustees  will  be  decreed  to  buy  other 
lands  of  equal  value  to  be  settled  to  the  same  uses.(r/) 

Where  the  ultimate  limitation  of  a  marriage  settlement  is  to  the  heirs 
of  the  hushand,  if  the  trustee  join  with  the  husband  and  wife  in  the 
destruction  of  that  remainder,  and  there  is  no  issue  of  the  marriage,  the 
heir  of  the  husband  is  not  entitled  to  come  upon  the  trustee  to  compen- 
sate him  for  the  loss  of  the  estate :  relief  is  extended  to  those  only  who 
come  in  and  claim  as  purchasers,  as  first  and  other  sons  ;  not  to  all  the 
subsequent  remaindermen,  as  the  right  heirs  of  the  husband,  who  are 
regarded  in  the  light  of  volunteers,  and  not  to  be  aided  in  a  court  of 
equityi/i) 

And  in  a  limitation  to  trustees  and  their  heirs  during  *the  life  r^K^A-r-i 
of  the  husband,  remainder  to  the  heirs  of  the  body  of  the  husband,  L  J 
remainder  to  the  husband  in  fee,  the  issue  of  the  marriage  cannot  claim 
compensation  for  a  breach  of  trust  during  the  lifetime  of  the  husband, 
for  nemo  est  hceres  viventis.{fj 

As  any  disturbance  of  the  settlement  before  the  eldest  son  has  attained 
twenty-one  is  a  clear  breach  of  trust,  it  follows  that  even  the  court  can- 
not sanction  such  a  proceeding,  though  very  particular  circumstances 
may  be  alleged  in  support  of  the  reasonableness  of  the  demand.  Thus, 
where  the  plaintiff  and  his  wife  had  been  married  twelve  years  without 
issue,  and  the  prayer  of  the  bill  was  that  part  of  the  estate  might  be  sold 
for  payment  of  debts,  and  the  trustees  submitted  to  act  as  the  court 
should  direct,  Lord  North  said  ^'he  could  not  justify  to  decree  a  breach 
of  trust :  he  had  known  where  people  had  been  married  near  twenty 
years  without  issue,  and  afterwards  had  children. "(Z-) 

But  two  cases  are  to  be  noticed,  in  which  the  court  did  conceive  itself 
justified,  from  the  great  particularity  of  the  circumstances,  in  departing 
from  this  rule. 

The  first  is  the  case  of  Piatt  v.  Sprigg,(?)  in  which  E.  mortgaged  lands 
to  M.  for  1000  years,  to  secure  lOOOZ.  and  interest,  and  afterwards  upon 
his  marriage  made  a  settlement,  subject  to  the  incumbrance,  to  the  use 
of  himself  for  life,  remainder  to  trustees  to  preserve  contingent  remain- 
ders, remainder  to  the  wife  for  life,  remainder  to  the  first  and  other  sons. 
The  mortgagee  threatened  to  enter,  and  the  lands  were  in  consequence 

(e)  2  P.  W.  678.  (/)  Id.  683. 

{g)  Mansell  v.  Mansell,  2  P.  W.  681,  per  Cur.;  Parkes  v.  White,  11  Yes.  209, 
see  220,  236:  Pye  v.  Gorge,  Pr.  Ch.  308  ;  S.  C.  1  P.  W.  128. 

(/t)  Tipping  V.  Piggott,  1  Eq.  Ca.  Ab.  385.  (i)  Else  v.  Osborn,  1  P.  W.  387. 

{k)  Davies  v.  Weld,  1  Vern.  181 ;  S.  C.  2  Ch.  Ca.  144. 
{I)  2  Vern.  303. 


358       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

articled  to  be  sold.  The  purchaser  filed  a  bill  praying  specific  perform- 
ance, and  that  the  trustees  might  be  directed  to  join  in  the  conveyance, 
and  so  it  was  decreed  by  the  court.  But  the  ground  of  this  decision 
was,  that,  as  the  mortgagee  was  not  bound  by  the  subsequent  settlement, 
he  might  have  foreclosed  the  estate,  and  so  have  precluded  the  parties 
entitled  under  the  settlement  from  all  interest  in  the  property ;  but  if  the 
lands  were  sold,  the  surplus  proceeds,  after  discharging  the  mortgage, 
*would  be  so  much  gained  to  the  uses  of  the  settlement.  Thus 
L  "^  J  the  principle  acted  upon  was  not  that  trustees  to  preserve  con- 
tingent remainders  might  join  in  the  destruction  of  them,  but  that  the 
best  mode  of  executing  the  trust,  under  the  circumstances,  was  to  sub- 
stitute a  sale  for  a  foreclosure,  and  to  lay  out  the  surplus  in  lands  to  be 
settled  to  the  same  uses.(«i) 

In  the  case  of  Basset  v.  Clapham(H)  A.,  after  marriage,  made  a  volun- 
tary settlement  of  lands  to  himself  for  life,  remainder  to  trustees  to  pre- 
serve contingent  remainders,  remainder  to  the  first  and  other  sons  in  tail, 
remainder  to  himself  in  fee,  and  afterwards,  becoming  insolvent,  executed 
a  conveyance  of  the  same  premises  to  trustees  for  payment  of  his  debts. 
The  creditors  filed  a  bill  for  the  purpose  of  obtaining  a  sale,  and  prayed 
that  the  trustees  might  join  in  destroying  the  contingent  remainders. 
Sir  Joseph  Jekyll  at  first  refused  the  application,  saying  there  was  no 
precedent  for  such  a  direction ;  but  afterwards,  a  precedent  being  pro- 
duced to  him,  he  granted  the  relief,  "  it  being,"  he  said,  "at  the  suit  of 
creditors,  and  for  raising  money  iox  payment  of  debts." 

It  should  also  be  mentioned  as  another  duty  of  this  class  of  trustees, 
that  if  an  estate  be  limited  to  A.  for  life,  remainder  to  trustees  to  pre- 
serve contingent  remainders,  remainder  to  the  first  and  other  sons  of  A. 
in  tail,  &c.,  should  A.  threaten  to  commit  waste  it  would  be  the  duty  of 
the  trustees  to  file  a  bill  for  an  injunction  for  the  benefit  of  the  contin- 
gent remaindermen,  (o) 

II.  Of  the  duties  of  trustees  to  preserve  contingent  remainders  after 
the  eldest  son  has  attained  twenty-one. 

Upon  the  occurrence  of  this  event  the  joining  or  not  joining  of  the 
trustees  in  the  destruction  of  the  remainders  ceases  to  be  imperative, 
and  becomes  matter  of  discretion :  they  are  said  to  be  honorary  trus- 
r*4.nQl  ^^'^^){p)  t^^^  is  bound  in  honour  only  to  *decide  on  the  most  pro- 
*-  J  per  and  prudential  course.  However,  the  court,  where  applica- 
tion was  made  to  it,  would  always,  as  the  general  trustee  in  these  cases, 
exercise  the  discretion  vicariously  for  the  trustees  5(5)  and,  where  the 
trustees  had  abused  the  discretion,  would,  whatever  might  have  been 
the  ancient  doctrine,(r)  hold  them  responsible  as  for  abroach  of  trust. (s) 

(m)  See  Barnard  v.  Large,  1  B.  C.  C.  536 ;  Moody  v.  Walters,  16  Ves.  303. 

(n)  1  P.W.  358. 

(0)  Perrot  v.  Perrot,  3  Atk.  95,  per  Lord  Hardwicke ;  Garth  v.  Cotton,  2  Ves. 
555,  jjer  eundem. 

{j})  See  Barnard  v.  Large,  1  B.  C.  C.  535 ;  Biscoe  v.  Perkins,  1  V.  &  B.  492  ; 
Woodhouse  v.  Hoskins,  3  Atk.  24. 

(?)  See  Moody  v.  Walters,  16  Ves.  307 ;  Biscoe  v.  Perkins,  1  V.  &  B.  492. 

(r)  See  Symance  v.  Tattan,  1  Atk.  614. 

(8)  Barnard  v.  Large,  1  B.  C.  C.  535,  per  Sir  T.  Sewell. 


OF    CONTINGENT    REMAINDERS.  359 

The  only  case  in  which  the  court  has  directed  the  contingent  limita- 
tions to  be  destroyed,  has  been  where  the  object  of  the  parties  was  to  re- 
settle the  property  upon  the  marriage  of  the  eldest  son.[t)  Thus  in 
Winnington  v.  Foley,  it  was  reported  by  the  master  that  the  marriage  of 
the  eldest  son  was  beneficial,  and  that  it  was  necessary  a  new  settlement 
should  be  made  of  the  estate,  and  Lord  Chancellor  Parker  said,  "  It 
would  be  greatly  mischievous  if  the  trustee  should  stand  out,  and  not 
join  with  the  father  and  son  in  cutting  off  the  old  settlement  and  making 
a  new  one  :  it  was  plainly  for  the  benefit  of  the  family;  for  by  the  in- 
tended settlement  the  son  was  to  be  but  tenant  for  life,  instead  of  tenant 
in  tail;"  and  so  decreed  the  trustee  to  join  in  the  recovery. (w) 

Where  the  court  has  been  called  upon  to  disturb  the  settlement,  and 
for  no  other  purpose  than  merely  to  disturb  it,  the  application  has  of 
course  been  refused. (y) 

And  a  fortiori  the  court  would  not  lend  its  sanction  if  the  object  of 
the  parties  were  such  as  the  court  ought  positively  to  discourage,  as 
where  the  intention  of  defeating  the  settlement  was  to  pay  off  the  father's 
incumbrances  at  the  expense  of  the  child. (ic)  "  The  reason  of  making 
the  father  tenant  for  ninety-nine  years  only,"  said  Lord  Hardwicke,  "  is 
in  order  to  preserve  the  estate  :  it  may  likewise  be  the  design  of  such 
^settlements  to  prevent  the  father's  influence  over  the  son  when  t^^^i^q-i 
of  age,  if  the  father  was  seised  of  the  freehold,  to  get  the  son  to  L  J 
destroy  the  settlement.  Here  the  intention  is  to  pay  the  debts  of  the 
father.  It  is  the  very  case  which  was  intended  to  be  prevented  by  the 
trust."(a;)  And  Sir  T.  Sewell  observed,  "  Trustees  to  preserve  contin- 
gent remainders,  who  have  the  freehold  in  possession,  are  appointed  for 
two  purposes — one  to  preserve  the  estate  against  the  father's  power  to 
destroy  it,  and  the  other  to  prevent  the  injury  of  any  improper  influence 
of  the  father  over  the  son  to  induce  him  to  join  in  destroying  the  entail 
created,  in  cases  where  he  ought  not  to  join.(y) 

From  the  conduct  of  the  court  on  these  occasions,  may  be  inferred  the 
duties  imposed  upon  the  trustees.  However,  should  the  trustees  exer- 
cise their  discretion  where  the  court  would  not  have  interfered,  it  does 
not  therefore  follow  that  they  are  liable  as  for  a  breach  of  trust :  it  is  one 
thing  for  the  court  to  say  the  object  of  barring  the  entail  is  not  so  clearly 
beneficial  as  to  justify  the  court  in  overturning  the  settlement ;  it  is 
another  to  hold  the  object  so  absolutely  mischievous  as  to  make  the  trus- 
tees responsible  on  the  ground  of  a  breach  of  duty.(2) 

The  preceding  remarks  have  been  general,  without  distinguishing 
between  marriage  settlements  and  wills ;  but  upon  principle,  perhaps, 

(t)  Frewia  v.  Charleton,  1  Eq.  Ca.  Ab.  386  ;  Townsend  v.  Lawton,  Sel.  Ch.  Ca. 
71;  Barnard  v.  Large,  1  B.  C.  C.  536,  per  Sir  T.  Sewell;  and  see  Symance  v. 
Tattam,  1  Atk.  614 ;  Dormer  v.  Fortescue,  3  Atk.  129. 

(u)   1  P.  W.  536  ;  and  see  Townsend  v.  Lawton,  2  P.  W.  380. 

(v)  Barnard  v.  Large,  1  B.  C.  C.  534. 

(w)  Townsend  v.  Lawton,  2  P.  W.  379 ;  Woodhouse  v.  Hoskins,  3  Atk.  22. 

(x)  Woodhouse  v.  Hoskins,  3  Atk.  24. 

(y)  Barnard  v.  Large,  1  B.  C.  C.  535. 

(z)  See  Biscoe  r.  Perkins,  1  V.  &  B.  491 ;  Woodhouse  v.  Hoskins,  3  Atk.  24 ; 
Barnard  v.  Large,  1  B.  C.  C.  535 ;  Moody  v.  Walters,  16  Ves.  309. 


3G0  LEW  IN    ox    THE    LAW    OF    TKUSTS,    ETC. 

the  two  instruments  ought  not  to  be  confounded.  The  object  of  a  mar- 
riao-e  settlement  is  to  preserve  the  estate  in  the  family,  and,  were  it  not 
for  the  rule  against  perpetuities,  the  limitation  to  the  eldest  son  would 
be  not  in  tail;  but  for  life,  with  remainder  to  his  eldest  son ;  and  if  on 
the  marriage  of  the  eldest  son,  the  trustee  has  joined  in  a  new  settlement 
for  the  purpose  of  further  tying  up  the  estate,  he  has  undoubtedly  acted 
in  conformity  with  the  original  intention.  But  in  a  will,  as  all  the  devi- 
sees are  volunteers,  and  the  trustee  does  not  hold  upon  trust  for  the  first 
tenant  in  tail  more  than  for  the  successive  remaindermen,  if  the  trustee 
j-jj, .  -  ^  ^  has  *enabled  an  eldest  son  to  get  possession  of  the  fee  simple  at 
L  -I  the  expense  of  the  remainderman's  interest,  it  might  be  argued 
he  has  overstepped  his  duty,  and  ought  to  answer  for  it  as  for  a  breach 
of  trust.  The  distinction  was  thus  observed  upon  by  Sir  T.  Sewell,  in 
the  case  of  Barnard  v.  Large. (a)  "  The  trustee/'  he  said,  ''  though  pro- 
perly appointed  to  preserve  contingent  remainders  only,  is,  in  effect,  a 
trustee  for  all  vested  as  well  as  contingent  remainders,  and  has  been  so 
considered ;  but  with  respect  to  vested  remainders  if  they  have  been  to 
remote  relations  upon  settlements,  where  the  persons  to  whom  they  are 
limited  are  not  the  immediate  objects  of  the  parties,  or  where  they  stand 
in  opposition  to  the  first  tenant  in  tail  desiring  a  reasonable  benefit  con- 
sistent with  the  intention  of  the  creators  of  the  limitations,  their  preten- 
sions have  not  been  much  considered  :  in  a  will  all  take  as  volunteers, 
and  are  equally  to  be  considered." 

But  this  distinction,  though  supported  by  the  authority  we  have  men- 
tioned, was  not  noticed  by  Lord  Eldon  in  the  discussion  of  Biscoe  v. 
Perkins,  the  case  of  a  devise. ft) 

The  law  upon  the  duties  of  trustees  to  preserve  contingent  remainders 
has  recently  undergone  great  alterations. 

By  the  15th  section  of  the  fines  and  recoveries  actM  it  is  declared, 
that  every  tenant  in  tail,  whether  m  j^ossession ,  remainder,  contingency, 
or  otherwise,  shall  have  power  to  dispose  of  the  lands  entailed  for  an 
estate  in  fee  simple  absolute ;  but  by  the  40th  and  two  following  sections, 
the  disposition  must  be  by  deed  inrolled,  and  must  be  made  with  the 
consent  of  tlie  protector  of  the  settlement. 

Under  the  old  law,  the  key  of  the  settlement  was  in  the  hands  of  the 
person  who  was  owner  of  the  freehold  in  possession;  but  now,  by  the 
32d  section,  any  settlor  entailing  lands  may  appoint  any  number  of  per- 
sons in  esse,  not  exceeding  three  and  not  being  aliens,  to  be  protector  of 
the  settlement  during  the  period  therein  specified,  and  may  perpetuate 
the  protectorship  by  means  of  a  power  of  appointment  of  new  protectors. 
If  the  settlor  has  not  taken  advantage  of  this  permission,  then,  by  the 
r*4121  ^'^^  section,  if  there  be  subsisting  *under  the  settlement  any 
-J  estate  for  years  determinable  on  the  dropping  of  a  life  or  lives, 
or  any  greater  estate  (not  being  an  estate  for  years)  prior  to  t^e  estate 
tail,  the  owner  of  such  prior  estate,  or  of  the  first  of  such  prior  estates 
if  more  than  one,  or  the  person  who  icould  have  been  owner  had  he  not 
disposed  of  his  interest,  is  constituted  the  protector  of  the  settlement ; 

(a)  1  B.  C.  C.  535.  (i)   i  y.  &  B.  485. 

(c)  3  &  4  Will.  4,  c.  74. 


OF  CONTINGENT  REMAINDERS. 


361 


but,^  by  the  27th  section,  no  dowress,  hare  trustee,  heir,  executor,  or  ad- 
ministrator shall  be  protector.  However,  by  the  31st  section,  it  is  en- 
acted, that  "  where,  ^lnder  a  settlement  made  before  the  passing  of  the 
act,  the  person,  who  under  the  old  law  should  have  made  the  tenant  to 
the  prcecipe,  shall  be  a  hare  trustee,  such  trustee  during  the  continuance 
of  the  estate  conferring  the  right  to  make  the  tenant  to  the  prcecipe 
shall  be  the  protector ;"  but,  by  the  36th  section,  the  protector  of  a 
settlement  shall  not  be  deemed  to  be  a  trustee  in  respect  of  his  power  of 
consent,  and  a  court  of  equity  shall  not  control  or  interfere  to  restrain 
the  exercise  of  his  power  of  consent,  nor  treat  his  giving  his  consent  as 
a  breach  of  trust. 

Under  the  provisions,  therefore,  of  this  act,  as  regards  settlements 
made  since  the  passing  of  the  act,  a  bare  trustee  cannot  be  protector  in 
any  case ;  and  as  regards  settlements  made  before  the  passing  of  the  act, 
though  the  trustee  may  become  protector  by  the  operation  of  the  31st 
section,  he  is  not  accountable  to  a  court  of  equity  for  the  exercise  of 
his  discretion. 

By  the  7  &  8  Vict.  c.  76,  s.  8,  it  was  declared  that  no  estate  should 
be  created  by  vfay  of  contingent  remainder  ;  but  that  every  estate  which 
before  that  time  would  have  taken  eifect  as  a  contingent  remainder, 
should  take  effect  as  an  executory  devise,  or  if  in  a  deed,  as  an  estate 
having  the  same  properties  as  an  executory  devise,  and  that  contingent 
remainders  already  created  should  not  be  defeated  by  the  destruction  or 
merger  of  the  preceding  estate. 

But  this  sweeping  clause  was  repealed  by  8  &  9  Vict.  c.  106,  s.  1 ; 
and  in  lieu  thereof  it  was  enacted  (s.  8,)  that  a  contingent  remainder 
should  be  deemed  capable  of  taking  effect,  notwithstanding  the  determi- 
nation by  forfeiture,  surrender  or  merger  of  any  preceding  estate  of  free- 
hold, in  *the  same  manner  in  all  respects  as  if  such  determina-  r^^A-,o-\ 
tion  had  not  happened.  L  '*^'^J 

It  is  consequently  now  unnecessary  to  make  use  of  any  machinery  for 
preserving  contingent  remainders  from  destruction  by  the  forfeiture,  sur- 
render, or  merger  of  the  preceding  estate.  But  limitations  to  trustees, 
during  the  lives  of  the  tenants  for  life,  are  still  frequently  introduced  in 
settlements  for  the  purpose  of  creating  a  check  upon  the  tenants  for  life, 
as,  in  cases  of  waste  by  them,  it  would  be  the  duty  of  the  trustees  to  in- 
terfere as  protectors  of  the  remaindermen's  interests. 

Moreover,  in  the  absence  of  such  limitations,  questions  of  considerable 
difficulty  would  arise  in  reference  to  the  right  of  protectorship  of  an  en- 
tailed estate,  in  cases  where  the  estate  which  would  otherwise  confer  the 
protectorship  became  extinguished  by  forfeiture  or  othei'wise ;  so  that, 
on  the  whole,  the  insertion  of  such  limitations  is  conceived  to  be  the 
safer  course. 

It  must,  of  course,  be  borne  in  mind,  in  connection  with  this  question, 
that  contingent  remainders  are  still  liable  to  be  defeated  should  the  pre- 
ceding life  estate  determine,  in  due  course,  before  they  become  vested. 
And,  in  this  point  of  view,  the  limitation  of  life  estates  adequate  to  sup- 
port the  contingent  remainders  is  still  a  matter  of  considerable  impor- 
tance. 


362 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


|-*414]  ^CHAPTER  XVI. 

DUTIES  OP  TRUSTEES  FOR  SALE. 

The  subject  of  trusts  for  sale  may  be  conveniently  distributed  into 
three  branches  :  first,  The  general  duties  of  trustees  for  sale  ;  secondly, 
The  power  of  trustees  to  sign  discharges  for  the  purchase-money ;  and, 
thirdly.  The  disability  of  trustees  to  become  purchasers  of  the  trust  pro- 
perty. 

SECTION  I. 

the  general  duties  of  trustees  for  sale. 

It  need  scarcely  be  observed  that  trustees  for  sale,  whether  expressly 
such,  or  only  by  implication,  as  persons  enabled  to  sell  by  virtue  of  a 
charge, (a)  are  authorized  to  enter  into  contracts  without  the  previous 
sanction  of  the  court ;(i)  but  where  a  bill  has  been  filed  for  the  execu- 
tion of  the  trust,  that  attracts  the  jurisdiction  of  the  court,  and  the  trus- 
tee would  not  be  justified  in  proceeding  to  a  sale  out  of  court.(c) 

The  trustee  will  remember  that  he  is  bound  by  his  ofl&ce  to  bring  the 
estate  to  a  sale  under  every  possible  advantage  to  his  cestui  que  trusf,[d) 
and  in  the  case  of  several  cestuis  que  trust,  with  a  fair  and  impartial 
attention  to  the  interests  of  all  the  parties  concerned. (e)  If  the  trustee, 
.  or  those  who  act  *by  his  authority,  fail  in  reasonable  diligence  in 
L  J  the  management  of  the  sale,  as  if  he  contract  under  circum- 
stances of  haste  and  improvidence,  or  contrive  to  advance  the  interests 
of  one  party  at  the  expense  of  another,  he  will  be  personally  responsible 
for  the  loss  to  the  suffering  party ;(/)  and  the  court,  however  correct 
the  conduct  of  the  purchaser,  will  refuse  at  his  instance  to  compel  the 
specific  performance  of  the  agreement. (^)  In  no  case  will  the  court  en- 
force the  specific  performance  of  a  contract  where  a  breach  of  trust  is 
involved,  (/i) 

A  trustee  who  takes  no  active  part  in  the  business  cannot  excuse  him- 
self by  saying  he  had  nothing  to  do  with  the  conduct  of  the  other  to 
whom  the  management  was  confided ;  for  where  several  trustees  commit 

(a)  Shaw  v.  Borrer,  1  Keen,  559. 

(6)  Earl  of  Bath  v.  Earl  of  Bradford,  2  Ves.  590,  per  Lord  Hardwicke. 

(c)  Walker  v.  Smalwood,  Amb.  676;  and  see  Raymond  v.  Webb,  Lofft,  66; 
Drayson  v.  Pocock,  4  Sim.  283  ;  Culpepper  v.  Aston,  2  Ch.  Ca.  116,  223 ;  and  see 
further,  infra,  pp.  523,  524. 

{d)  Downes  v.  Grazebrook,  3  Mer.  208,  per  Lord  Eldon ;  and  see  Matthie  v. 
Edwards,  2  Coll.  480. 

(e)  Ord  v.  Noel,  5  Mad.  440,  per  Sir  J.  Leach  ;  and  see  Anon,  case,  6  Mad.  11. 

(/)  See  Pechel  v.  Fowler,  2  Anst.  550. 

[g)  Ord  V.  Noel,  5  Mad.  440,  per  Sir  J.  Leach ;  Turner  v.  Harvey,  Jac.  ITS,  per 
Lord  Eldon;  Bridger  v.  Rice,  1  'Jac.  &  Walk.  74;  Mortlock  v.  Buller,  10  Ves. 
292  ;  and  see  Hill  v.  Buckley,  17  Ves.  394 ;  White  v.  Cuddon,  8  CI.  &  Fin.  766. 

{h)  Wood  V.  Richardson,  4  Beav.  116,  per  Lord  Langdale ;  Fuller  v.  Knight,  6 
Beav.  205 ;  Thompson  v.  Blackstone,  6  Bear.  470. 


DUTIES  OF  TRUSTEES  FOR  SALE.         3(53 

the  entire  administration  of  the  trust  to  the  hands  of  one,  they  are  all 
equally  responsible  for  the  faithful  discharge  of  their  joint  duty  by  that 
one  whom  they  have  substituted. (i) 

The  trustees  will  be  allowed  a  reasonable  time  for  disposing  of  the 
estate,  and  though  the  instrument  creating  the  trust  direct  them  to  sell 
"with  all  convenient  speed,"  that  is  no  more  than  is  implied  bylaw, 
and  does  not  render  an  immediate  sale  imperative. (/i:)  On  the  other 
hand,  if  the  trust  be  to  sell  "  at  such  time  and  in  such  manner  as  the 
trustees  shall  think  fit,"  this  will  not  authorize  the  trustees  to  postpone 
the  sale  arbitrarily  to  an  indefinite  period;  at  all  events  the  trustees  can- 
not by  such  postponement  vary  the  relative  rights  of  the  tenant  for  life 
and  remaindermen,  and  so  interfere  with  the  settlor's  intention. (?) 

*If  the  trust  be  "with  all  convenient  speed  and  within  |-*j.ipT 
five  years"  to  sell  the  estate  and  apply  the  funds  in  payment  of  L  J 
debts,  &c.,  the  proviso  as  to  the  five  years  is  considered  as  directory  only, 
and  the  trustees  can  sell  and  make  a  good  title  after  the  lapse  of  that 
period.  The  court  could  scarcely  impute  to  the  settlor  the  intention  that 
the  sale  at  the  end  of  the  five  years  should  be  made  by  the  court,  which 
would  be  the  case  if  the  power  in  the  trustees  were  extinguished. (?/i) 

In  a  case  where  the  trustees  had  endeavoured  for  some  time  to  sell, 
and  not  having  succeeded,  they  agreed  to  execute  a  lease,  the  court,  on 
a  bill  filed  by  the  trustees  to  compel  specific  performance,  refused  to  de- 
cree the  lease,  as  the  trust  for  sale  did  not  j^rima  facie  imply  a  power  to 
grant  leases. (ji)  And  so  executors,  although  quasi  trustees  for  sale, 
may,  under  special  circumstances,  be  justified  in  granting  a  lease  ;(o) 
but  such  an  act  is  not  regularly  within  their  province,  and  therefore  it 
is  incumbent  on  the  persons  taking  a  lease  from  them  to  show  that  it 
was  called  for  by  the  interests  of  the  parties  entitled  to  the  property.(p) 

A  trust  for  sale,  if  there  be  nothing  to  negative  the  settlor's  intention 
to  convert  the  estate  absolutely,  will  not  authorize  the  trustees  to  execute 
a  mortgage. (^q)  But  where  an  estate  is  devised  to  trustees,  charged  with 
debts,  and  subject  thereto,  upon  trust  for  certain  parties,  so  that  a  sale, 
though  it  may  be  required,  is  not  the  testator's  object,  the  trustees  may, 
for  the  purpose  of  paying  the  debts,  more  properly  mortgage  than  sell.(>-) 
"A  power  of  sale  out  and  out,"  observed  Lord  St.  Leonards,  "  for  a  pur- 
pose, or  with  an  object  beyond  the  raising  of  a  particular  charge,  does 
not  authorize  a  mortgage;  but  where  it  is  for  raising  a  particular  charge, 
and  the  estate  is  settled  subject  to  that  charge,  then  it  may  be  proper, 
under  the  circumstances,  to  raise  the  money  by  mortgage,  and  the  court 

(i)  Oliver  t.  Court,  8  Price,  166,  per  Lord  Chief  Baron  Richards  ;  In  re  Chert- 
sey  Market,  6  Price,  28o,  per  eundem. 

(k)  Buxton  V.  Buxton,  1  M.  &  C.  80  ;  Garrett  v.  Noble,  6  Sim.  504 ;  and  see 
Fitzgerald  v.  Jervoise,  5  Mad.  25  ;  Vickers  v.  Scott,  3  M.  &  K.  500. 

(l)  See  Walker  v.  Shore,  19  Ves.  391  ;  Hawkins  v.  Chappell,  1  Atk.  623. 

(??i)  Pearce  t.  Gardner,  10  Hare,  287  ;  and  see  CufiF  v.  Hall,  1  Jur.  N.  S.  973. 

(n)  Evans  v.  Jackson,  8  Sim.  217. 

(0)  Hackett  v.  M'Namara,  LI.  &  G.  Rep.  t.  Plunket,  283. 

(p)  Keating  v.  Keating,  LI.  &  G.  Rep.  t.  Sugden,  133. 

(qj  Haldenby  v.  Spafforth,  1  Beav.  390 ;  Stroughill  v.  Anstey,  1  De  G.  M.  &  G. 
635;  Page  v.  Cooper,  16  Beav.  396;  Devaynes  v.  Robinson,  5  Weekly  Rep.  509. 

(r)  Ball  v.  Harris,  4  M.  &  Cr.  264. 


3G4       LEW  IN  ON  THE  LAW  OF  TRUSTS,  ETC. 

will  support  it  *as  a  conditional  sale,  as  something  within  the 
L         J  power,  and  as  a  proper  mode  of  raising  the  money.(s) 

A  testator  devised  an  estate  to  trustees  upon  trust  to  apply  the  rents 
for  fifteen  years  in  payment  of  incumbrances  charged  thereon,  and  if,  by 
any  reason  whatever,  in  the  opinion  of  the  trustees  a  sale  should  become 
necessary,  "  they  were  authorized  to  sell."  The  purchaser  objected  that 
the  amount  of  the  incumbrances  would  not  justify  a  sale  of  the  whole 
estate,  but  it  was  held  that  the  power  of  sale  depended  on  the  opinion 
of  the  trustees,  and  the  fact  that  they  thought  it  necessary  would  be  evi- 
denced by  the  conveyance. (^) 

A  trust  to  raise  money  by  mortgage  will  not  authorize  a  sale,  though 
the  latter  may  be  more  beneficial  to  the  estate ;  and  the  court  itself  has 
no  jurisdiction  to  substitute  a  sale  for  a  mortgage. («) 

A  power  to  trustees  to  sell  will  not  authorize  a  partition,  though 
whether  a  power  to  sell  and  exchange  will  do  so  remains  at  present 
doubtful,  (i;) 

In  settlements  of  real  estate  a  power  of  sale  is  usually  given  to  trus- 
tees, to  be  exercised  with  the  consent  of  the  tenant  for  life,  with  a  direc- 
tion to  lay  out  the  proceeds,  with  all  convenient  speed,  in  another  pur- 
chase, and  in  the  mean  time  to  invest  them  upon  some  proper  security. 
For  determining  upon  what  occasions  the  trustees  would  be  justified  in 
proceeding  to  a  sale,  it  will  be  proper  to  notice,  in  the  words  of  Lord 
Eldon,  the  intention  of  the  settlement  in  so  framing  the  power :  "  The 
most  improvident  course  that  could  be  adopted,"  he  said,  "would  be  to 
intrust  the  tenant  for  life  with  the  execution  of  the  power;  for  it  is 
generally  the  interest  of  the  tenant  for  life  to  convert  the  estate  into 
money,  either  with  a  view  to  sell  another  estate  to  his  family,  or  for  the 
ordinary  purpose  of  getting  a  better  income  during  his  life.  The  mode 
of  settlement,  therefore,  in  such  a  case,  is,  that  the  trustees  are  to  sell, 
but  not  without  calling  to  their  aid  all  fair  attention  to  the  nature  of  the 
r*4.1Sl  subject  and  the  convenience  of  the  *property;  they  are  to  sell, 
L  J  therefore,  with  the  consent  of  the  tenant  for  life;  and  as  he  is 
a  purchaser  for  the  future  family,  the  providence  of  the  settlement  re- 
quires that  the  fact  of  such  consent  and  approbation  should  be  evidenced 
by  deed,  &c.  With  that  consent  and  approbation  necessary  to  protect 
the  interest  of  the  tenant  for  life,  the  trustees,  bound  to  a  due  attention 
to  the  interest  of  the  children,  have  a  power  of  selling  for  such  price  as 
shall  appear  to  them  to  be  reasonable,  that  is,  after  they  have  with  due 
diligence  examined."  His  lordship  then  proceeds  to  lay  down  the  rule 
that  ought  to  regulate  the  conduct  of  trustees  in  the  following  terms : — 
'^  The  object  of  the  sale,"  he  said,  "  must  be  to  invest  the  money  in  the 
purchase  of  another  estate,  to  be  settled  to  the  same  uses,  and  they  are 
not  to  be  satisfied  with  probability  upon  that,  but  it  ought  to  be  with 
reference  to  an  object  at  that  time  supposed  practicable,  or,  at  least,  this 

(s)  Stroughill  v.  Anstej,  1  De  G.  M.  &  G.  645  ;  Page  v.  Cooper,  16  Beav.  400. 
(t)  Rendlesham  v.  Meux,  14  Sim.  249. 
(m)  Drake  v.  Whitmore,  5  De  G.  &  Sm.  619. 

(y)  Brassey  v.  Chalmers,  16  Beav.  223;  4  De  G.  M.  &  G.  528;  Bradshaw  v. 
Fane,  2  Jur.  N.  S.  247. 


DUTIES  OF  TRUSTEES  FOR  SALE.         365 

court  would  expect  some  strong  purpose  of  family  prudence  justifying 
the  conversion,  if  it  is  likely  to  continue  money."(?«)  Sir  W.  Grant  is 
said  to  have  concurred  in  the  same  sentiments, (x)  so  that  clearly  the 
trustees  would  not  be  justified  in  selling  to  gratify  the  caprice  or  pro- 
mote the  exclusive  interest  of  the  tenant  for  life.  It  might  happen  that 
particular  circumstances  might  call  for  an  immediate  sale,  as  where  an 
extremely  advantageous  offer  is  made,  or  there  is  a  prospect  of  great  de- 
terioration by  abstaining  from  exercising  the  power ;  but,  generally 
speaking,  the  trustees  ought  not  to  convert  the  estate  without  having 
another  specific  purchase  in  view,  and  then  not  for  the  mere  purpose  of 
conversion,  but  in  the  honest  exercise  of  their  discretion,  for  the  benefit 
of  all  parties  claiming  under  the  settlement. (y)  The  power  of  investing 
the  proceeds  upon  some  security  in  the  mean  time  was  not  meant  to  au- 
thorize the  continuance  of  the  pi'operty  as  money,  but  only  to  meet  the 
exigencies  of  particular  circumstances,  as  where  the  trustees  are  disap- 
pointed of  the  contemplated  new  purchase,  or  the  state  of  the  title  leads 
to  necessary  delay. 

*Trustees  for  sale  at  the  request  and  by  the  direction  of  another  ^^.^  (... 
party,  to  be  testified  by  writing,  &c.,  cannot  obtain  a  decree  for  L  J 
specific  performance  without  first  proving  that  the  contract  was  entered 
into  at  such  request  and  by  such  direction,  and  that  such  request  and 
direction  have,  either  before  or  since  the  contract,  been  testified  by  the 
requisite  writing. (z) 

If  an  estate  be  vested  in  trustees  upon  trust  for  A.  for  life,  and  then 
to  sell,  the  trustees  have  no  power  to  sell  during  the  life  of  A.,  however 
beneficial  it  may  be  to  the  parties  interested  in  the  trust. (a) 

Where  an  estate  is  vested  in  two  or  more  trustees  upon  trust  to  raise  a 
sum  by  sale  or  mortgage,  and  one  of  the  trustees  dies,  the  survivors  or 
survivor  may  sell  or  mortgage,  unless  there  be  words  in  the  settlement 
which  expressly  declare  that  the  trust  shall  not  be  exercised  by  the  sur- 
vivors or  survivor,  for  the  execution  of  a  trust  is  not  treated  on  the  foot- 
ing of  a  power ;  but  the  presumption  is  that,  as  the  estate,  so  the  discre- 
tionary part  of  the  trust  passes  to  the  survivors  or  survivor. (6) 

The  objection  is  sometimes  taken  that,  where  there  is  a  power  of  ap- 
pointment of  new  trustees,  and  one  of  the  trustees  has  died  and  a  new 
trustee  has  not  been  substituted,  the  survivor  is  incompetent  to  execute 
a  valid  conveyance.  But  the  legal  estate  passes  to  the  surviving  joint 
tenant  at  law,(c)  and  the  trust,  as  we  have  seen,  shifts  to  the  survivor  in 
equity  -.(cl)  and  though  a  proviso  for  appointment  of  new  trustees  may 
certainly  be  so  framed  that  the  execution  of  the  trust  should,  until  a  new 
trustee  has  been  substituted,  remain  in  suspense,(e)  yet  the  clause,  as 

(w)  Mortlock  T.  Duller,  10  Ves.  308,  309. 

(z)  Lord  Mahon  v.  Earl  Stanhope,  cited  2  Sug.  Pow.  512. 

(y)  See  Cowgill  v.  Lord  Oxmantown,  3  Y.  &  C.  369 ;  Watts  v.  Girdlestone,  6 
Beav.  188  ;  Marshall  v.  Sladden,  4  De  Gex  &  Sm.  468. 

(z)  Adams  v.  Broke,  1  Y.  &  C.  Ch.  Ca.  627 ;  see  the  decree  at  the  foot  of  the 
case,  and  see  Blackwood  v.  Borrowes,  2  Conn.  &  Laws,  459. 

(a)  Johnstone  v.  Baber,  8  Beav.  233.  (6)  Lane  v.  Debenham,  11  Jiir.  1004. 

(c)  Doe  V.  Godwin,  1  D.  &  R.  259.  (d)  See  supra,  pp.  299,  300. 

(e)  See  Foley  v.  Wontner,  2  Jac.  &  Walk.  246. 

March,  1858.— 24 


366       LEWIN  ox  THE  LAW  01  TRUSTS,  ETC. 

usually  penned  in  settlements,  is  considered  by  the  courts  to  be  merely 
of  a  directory  character. (/) 

In  a  mortgage  to  two  persons  where  there  is  apovser  of  sah  to  "  them, 
their  heirs  and  assigns,"  and  one  dies,  the  survivor  may  *sell  -.(g) 
L  J  and  in  a  mortgage  to  A.  in  fee,  with  a  power  of  sale  to  him,  "  his 
heirs,  administrators,  executors  and  assigns,"  the  administrator  of  the 
assign  of  A.,  though  the  legal  estate  of  the  lands  be  not  in  himself,  but 
in  a  trustee  for  him  under  a  conveyance  from  the  heir  of  the  assign,  is, 
too-ether  with  such  trustee,  an  assign  within  the  meaning  of  the  power, 
and  can,  therefore,  sell.(/i) 

lu  respect  of  sales  and  mortgages  for  raising  portions,  if  a  specific  sum 
be  civen  to  A.,  payable  on  her  age  of  twenty-one  years,  or  day  of  mar- 
riao'e,  the  money  cannot  be  raised  until  the  interest  has  become  vested ; 
for  should  the  fund  created  by  the  money  raised  prove  deficient,  the  por- 
tionist  might  still  have  recourse  to  the  estate  :(i\  and  so  where  the  trust 
of  a  term  was  to  raise  3000^.  for  younger  children,  payable  at  their  respec- 
tive ages  of  twenty-one  years,  or  days  of  marriage,  it  was  held  the  trustees 
were  not  authorized,  "when  one  child  had  attained  his  age  of  twenty-one 
years,  to  raise  the  entire  sum ;  for  the  infant  children  could  not  be  de- 
prived of  the  real  security  for  their  shares. (/r)  But  from  the  manifest 
convenience  of  raising  the  portions  at  once,  it  seems  the  court  will  lean 
to  that  construction  where  any  thing  appears  upon  the  instrument  to  con- 
template such  a  course.  Thus  the  trustees  of  a  marriage  settlement  were 
directed,  after  the  death  of  the  husband,  to  levy  and  raise  by  mortgage, 
sale,  or  other  disposition  of  the  estate,  if  there  should  be  more  than  three 
children,  the  sum  of  10,000^.  for  their  portions,  the  shares  of  the  sons  to 
be  vested  in,  and  payable  to  them  at  the  age  of  twenty-one,  and  the  shares 
of  the  daughters  at  twenty-one  or  marriage;  and  it  was  provided  that  no 
mortgage  should  he  made  until  some  one  of  the  portions  should  become 
payable;  and  four  of  the  children  had  attained  twenty-one  and  three 
were  under  age ;  the  vice-chancellor  said,  ^'  In  this  settlement  there  is  a 
clause  that  no  mortgage  is  to  be  made  until  some  one  of  the  portions  shall 
become  payable.  The  whole  10,000/.  must  therefore  be  raised  at  once. 
r*4.-'>n  ^^  ^^  objected  that  some  of  the  shares  may  become  ^diminished 
L  "  J  in  amount :  the  answer  to  that  is,  that  the  court  considers  the  in- 
vestment in  the  three  per  cent,  consols  as  equivalent  to  payment.  If 
there  is  any  rise  in  the  funds  the  children  under  ase  will  have  the  bene- 
fit of  it.  (/) 

A  trustee  for  sale  will  of  course  inform  himself  of  the  real  value  of  the 
property,  and  for  that  purpose,  will,  if  it  be  necessary,  employ  some  ex- 
perienced person  to  furnish  him  with  an  estimate,  (m) 

And  as  a  trustee,  like  any  ordinary  vendor,  is  bound  to  make  the  pur- 

(/)  See  supra,  p.  301.  [g)  Hind  v.  Poole,  1  Kay  &  Johns.  383. 

{h)  Saloway  v.  Strawbridge,  1  Kay  &  Johns.  371. 
(t)  Dickenson  v.  Dickenson,  3  B.  C.  C.  19. 
[k)  Wynter  v.  Bold,  1  S.  &  S.  507. 
[l)  Gillibrand  v.  Goold,  5  Sim.  149. 

(m)  See  Oliver  v.  Court,  8  Price,  165:  Campbell  v.  Walker,  5  Yes.  G80:  Conollv 
T.  Parsons,  3  Ves.  628,  note  ;  Sugd.  Vend.  &  Purch.  55,  11th  ed. 


DUTIES  OF  TRUSTEES  FOR  SALE.         3(37 

chaser  a  good  title,(n)it  would  be  prudent,  before  proceeding  to  the  exe- 
cution of  the  trust,  to  take  the  opinion  of  some  professional  person  whether 
a  good  title  can  be  deduced.  Should  the  contract  for  sale  be  uncondi- 
tional and  the  title  prove  bad,  the  purchaser  in  a  suit  for  specific  per- 
formance would  be  allowed  his  costs  against  the  trustee, (o)  though  the 
trustee,  where  his  conduct  was  excusable,  might  charge  them  upon  the 
trust  estate  under  the  head  of  expenses. 

If  lands  be  devised  to  trustees  in  trust  to  sell  for  payment  of  debts, 
and  subject  to  that  charge  be  given  to  A.  for  life  without  impeachment 
of  waste,  with  remainders  over,  the  trustees  must  not  raise  the  money 
by  a  sale  of  timber,  which  would  be  a  hardship  on  the  tenant  for  life, 
but  by  a  sale  of  part  of  the  estate  itself;  and  should  they  have  impro- 
perly resorted  to  a  fall  of  timber,  the  tenant  for  life  would  have  a  charge 
upon  the  lands  to  the  amount  of  the  proceeds. (p)  And,  on  the  other 
hand,  if  there  be  a  sum  given  to  be  laid  out  in  the  purchase  of  an  estate 
to  be  settled  on  A.  for  life  without  impeachment  of  waste,  with  remain- 
ders over,  the  trustees  would  not  be  justified  in  purchasing  a  wood-estate, 
so  that  the  tenant  for  life  when  put  in  possession  could,  by  a  fall  of  the 
timber,  possess  himself  of  a  great  part  of  the  capital  or  corpus  of  the 
fund.  But  it  is  presumed  that  the  trustees  might  purchase  an  estate 
where  the  timber  standing  formed  no  very  considerable  part  *of  r-if:iQo-, 
the  value,  for  it  cau  hardly  be  supposed  that  the  trustees  were  L  -1 
meant  to  purchase  land  without  a  tree  upon  it. 

The  sale  may  be  conducted  by  public  auction  or  private  contract,  as 
the  one  or  the  other  mode  may  be  most  advantageous,  according  to  the 
circumstances  of  the  case. (5)  And  it  was  held  under  the  old  Insolvent 
Debtors'  Act,  7  Geo.  4,  c.  57,  s.  20,  directing  a  sale  by  auction,  that  the 
assignees  of  an  insolvent  might  sell  a  real  estate  by  private  contract,  after 
an  ineffectual  attempt  to  dispose  of  it  by  auction. (/•)  And  so,  under  the 
subsequent  Insolvent  Debtors'  Act  (1  &  2  Yict.  c.  110,  s.  47,  which  di- 
rects the  assignees  of  insolvents  to  sell  "in  such  manner"  as  the  major 
part,  in  value,  of  the  creditors  should  direct,)  in  a  case  where  the  credi- 
tors resolved  that  there  should  be  a  reserved  bidding  of  325/.,  and  the 
assignees  sold  by  auction  for  310?.,  the  clause  was  held  to  be  merely 
directory,  and  that  the  deviation  from  the  resolution  of  the  creditors  did 
not,  therefore,  vitiate  the  sale.(.s) 

The  trustee  cannot  without  responsibility  delegate  the  general  trust 
for  sale  }(t)  but  there  seems  to  be  no  objection  to  the  employment  of  agents 
by  him,  where  such  a  course  is  conformable  to  the  common  usage  of  busi- 
ness, and  the  trustee  acts  as  prudently  for  the  cestui  que  trust  as  he  would 

(n)  White  v.  Foljambe,  11  Yes.  343,  345,  per  Lord  Eldon  :  and  see  M'DonaM  v. 
Hanson,  12  Yes.  277  ;  Yeud.  &  Purch.  61,  11th  ed. 

(0)  Edwards  v.  Harvey,  Coop.  40. 

(p)  Davies  v.  Westcomb,  2  Sim.  425. 

{q)  See  Ex  parte  Dunman,  2  Rose,  66  ;  Ex  parte  Hurlj,  2  D.  &  G.  631 ;  Ex  parte 
Ladbroke,  1  Mont.  &  A.  384. 

(r)  Mather  v.  Priestmau,  9  Sim.  352. 

(s)  Wright  V.  Maunder,  4  Beav.  512  ;  and  see  Sidebotham  T.  Barrington,  4 
Beav.  110. 

(t)  Hardwick  t.  Mynd,  1  Anst.  109. 


368  LEWIN    ON    THE    LAW    OF    TRUSTS,>ETC. 

have  done  for  himself.(«)  But  an  agent  for  sale  must  not  be  allowed  to 
receive  the  purchase-money. 

If  the  trustee  think  a  sale  by  auction  the  more  eligible  mode,  he  must 
see  that  all  proper  advertisements  are  made,  and  due  notice  given.  It 
was  ruled  in  aa  old  case,(z;)  that  a  cestui  que  trust  could  not,  by  alleging 
the  want  of  these  preliminary  steps,  obtain  an  injunction  against  the 
sale ;  for,  the  trustee  being  personally  responsible  to  the  cestui  que  trust 
for  any  consequential  damage,  the  court  could  not  regard  it  as  a  case  of 
irreparable  injury.  But,  in  a  more  recent  case,  where  a  mortgage  deed 
_  contained  a  power  of  sale,  and  the  mortgagor,  *alleging  that  due 
L  ""  J  notice  had  not  been  given,  applied  for  an  injunction  against  the 
sale,  though  Sir  John  Leach  in  the  first  instance,  on  the  assumption  that 
the  potcer  was  vested  in  the  mortgagee, (^ic^  refused  the  motion,  consider- 
ing that,  as  the  plaintiff  might  give  notice  to  the  purchaser  of  the  insti- 
tution of  the  suit,  it  was  better  there  should  be  an  additional  party  to  the 
cause  than  a  possible  injury  be  risked  to  the  mortgagee  by  the  interrup- 
tion of  the  sale,  yet  it  afterwards  appearing  that  the  power  was  limited  to 
a  trustee,  and  that  the  mortgagor  had  not  been  apprised  of  the  intended 
sale,  his  honor  granted  the  injunction.  <'  It  was  the  duty,"  he  said, 
"  of  the  trustee  to  attend  equally  to  the  interests  of  both  cestitis  que  trust, 
and  to  apprise  both  of  the  intention  of  selling,  that  each  might  take  the 
means  to  procure  an  advantageous  sale."(cc) 

A  trustee  may  sell  subject  to  any  reasonable  conditions  of  sale,(?/)  but 
would  not  be  justified  in  clogging  the  property  with  restrictions  that 
were  evidently  uncalled  for  by  the  state  of  the  title. (2)  It  is  not  unusual 
in  penning  a  trust  for  sale  to  authorise  the  trustees  expressly  to  insert 
special  conditions  of  sale ;  but  still  this  would  be  no  warrant  for  the 
introduction  of  stipulations  plainly  a  breach  of  trust  as  not  rendered 
necessary  by  the  state  of  the  title,  and  calculated  to  damp  the  success  of 
the  sale. 

There  seems  to  be  no  rule  to  prevent  trustees  from  selling  in  lots, 
should  the  auctioneer  or  other  experienced  person  recommend  it  as  the 
most  advisable  course. (a) 

It  is  certain  that  assignees  of  a  hankrupt  cannot  buy  in  at  the  auction 
without  the  authority  of  the  creditors.  Where  the  assignees  had  put  up 
the  estate  in  two  lots,  and  bought  them  in,  and  afterwards  upon  are-sale 
there  was  a  gain  upon  one  lot  and  a  loss  upon  the  other,  the  balance 
upon  the  whole  being  in  favour  of  the  estate,  Lord  Eldon  compelled  the 
assignees  to  account  for  the  diminution  of  price  on  the  one  lot,  and 
would  not  allow  them  to  set  off  the  increase  of  price  on  the  other.(i)    It 

{u\  Ex  parte  Bekhier,  Amb.  218  ;  and  see  Ord  v.  Noel,  5  Mad.  438. 

{v)  Pechal  v.  Fowler,  2  Anst.  549. 

(w)  As  to  restraining  a  mortgagee  from  selling,  see  Matthie  v.  Edwards,  2  Coll. 
465,  S.  C.  on  appeal  nomine  Jones  v.  Matthie,  11  Jurist,  504. 

{x)  Anon,  case,  6  Mad.  10;  Blennerbasset  v.  Day,  2  B.  &  B.  133. 

(2/)  Hobson  V.  Bell,  2  Beav.  17. 

{2)  Wilkins  V.  Fry,  2  Rose,  375 ;  S.  C.  1  Mer.  268. 

(a)  See  Co.  Lit.  113  a  ;  Ord  v.  Noel,  5  Mad.  438  ;  and  see  Ex  parte  Lewis,  1 
Gl.  &  J.  69.  >  i'  ) 

(i)  Ex  parte  Lewis,  1  Gl.  <fe  J.  69  ;  and  see  Ex  parte  Buxton,  id.  355  ;  Ex  parte 
Baldock,  2  D.  &  C.  60 ;  Ex  parte  Gover,  1  De  Gex,  349. 


I 


I 


( 


DUTIES  OF  TRUSTEES  FOR  SALE.         359 

*niay  be  thouglit  perhaps  tliat  assignees  acting  under  a  statute  p:^^^^^-, 
have  less  discretionary  power  than  belongs  to  ordinary  trustees  ;  L  "'J 
but  in  Taylor  v.  Tabrum(c)  the  same  principle  was  applied  to  trustees  in 
the  proper  sense  of  the  word.  An  estate  had  been  devised  upon  trust 
to  sell,  and  soon  after  the  testator's  death,  the  trustees  put  up  the  pro- 
perty to  auction,  and  GOOOZ.  was  bid,  but  one  of  the  parties  interested 
desiring  it  might  not  be  sold  under  7000^.,  the  property  was  bought  in. 
Four  or  five  years  afterwards  they  sold  it  for  3600^.  and  they  were  held 
responsible  for  the  consequent  loss  to  the  estate.  It  was  said  by  Sir  J. 
Leach,  that,  "  if  the  sale  be  made  with  all  the  circumstances  of  caution 
which  a  provident  owner  would  have  applied  in  the  case  of  his  own 
property,  it  could  not  be  a  breach  of  trust  that  the  estate  did  not  produce 
a  full  price,  for  the  very  nature  of  an  auction  was  that  the  adequacy  of 
price  should  be  submitted  to  the  chance  of  competition. "(t^) 

Trustees  for  sale  under  an  act  of  parliament  are  chargeable  with 
auction  duty  in  the  same  manner  as  any  other  vendor.(e) 

The  court  will  not  enforce  a  contract  against  trustees  where  it  presses 
with  extreme  hardship.  Thus,  where  trustees,  not  being  apprised  of  the 
real  amount  of  the  incumbrances  upon  an  estate,  entered  into  a  personal 
engagement  with  the  purchaser  to  clear  off  all  incumbrances,  the  court 
would  not  compel  the  trustees  to  fulfil  their  contract,  but  left  the  parties 
to  law,(/)  and  the  bill  was  dismissed  without  costs. (,^) 

The  purchaser,  after  the  contract,  should  not  be  let  into  possession  of 
the  estate  until  the  completion  of  the  sale  by  payment  of  the  full  pur- 
chase money.  (A) 

In  drawing  the  conveyance,  the  word  "  grant"  being  commonly 
(though  erroneously)  supposed  to  contain  a  warranty,(ij  the  trustee, 
instead  of  "  granting,  bargaining,  selling,  and  releasing,"  is  made  to 
«  bargain,  sell,  and  release,"  with  *the  omission  of  the  word  r^j^^r-i 
"  grant :"  and  it  is  usual,  in  order  to  secure  the  trustees  from  L  "  J 
the  possibility  of  parting  with  any  interest  to  which  they  may  be  entitled 
beneficially,  to  insert  in  the  operative  part  of  the  instrument  the  words 
"  according  to  their  estate  and  interest  as  such  trustees." 

A  trustee  cannot  be  compelled  to  enter  into  any  other  covenant  for 
title  than  against  incumbrances  by  his  own  acts. (A;)     But  it  would  be 

(c)  6  Sim.  281. 

{d)  Ord  V.  Noel,  5  Mad.  440 ;  but  see  Conolly  v.  Parsons,  3  Ves.  628,  note. 

(e)  King  v.  Winstanley,  8  Price,  180. 

(/)  Wedgwood  v.  Adams,  6  Beav.  600.  (ff)  8  Beav.  103. 

(h)  Oliver  v.  Court,  8  Price,  166,  per  Chief  Baron  Richards;  see  Browell  v. 
Reed,  1  Hare,  434. 

(i)  See  Co.  Lit.  384  a,  note  (1),  Eargrave  and  Butler's  Ed.;  and  see  8  &  9  V. 
c.  106,  s.  4. 

{k)  White  V.  Foljambe,  11  Ves.  345,  per  Lord  Eldon  ;  Onslow  v.  Lord  Londes- 
borough,  10  Hare,  74,  per  Cur. ;  Worley  v.  Frampton,  5  Hare,  560 ;  Stephens  v. 
Hotham,  1  Kay  &  Johns.  571;  and  Page  v.  Broom,  3  Beav.  36.  This  is  carried  to 
such  an  extent  that,  where  a  lessor  grants  a  lease  with  a  covenant  for  perpetual 
renewal,  devisees  in  trust  of  the  lessor,  though  bound  to  grant  a  new  lease,  are 
not  bound  to  enter  into  a  similar  covenant.  In  these  cases  the  court  has,  in  or- 
der to  secure  the  lessee  without  making  the  trustees  personally  liable,  declared 
the  right  of  the  lessee  to  a  perpetual  renewal,  and  directed  the  new  lease  to  con- 


370       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

prudent  in  trustees  to  apprise  the  public  that  they  sell  in  that  character, 
that  the  purchaser  may  not  say  he  was  led  to  suppose  from  the  advertise- 
ments of  sale,  that  the  vendors  were  the  beneficial  proprietors,  that  the 
contract  must,  therefore,  draw  with  it  the  usual  incidents,  and  that  the 
purchaser  ought  to  have  the  benefit  of  the  ordinary  covenants. 

Mortgagees  with  a  power  of  sale  are  regarded  as  trustees,  and  covenant 
only  against  their  own  acts.(?)  To  the  extent  of  their  mortgage  money 
they  are  beneficially  interested,  but  not  as  owners  of  the  estate,  but  only 
as  incumbrancers  entitled  to  a  charge. 

It  was  laid  down  by  Lord  Eldon,  that  assignees  of  bankrupts -were 
bound,  in  case  they  could  not  deliver  up  the  title  deeds,  to  furnish  the 
purchaser  with  attested  copies  and  to  covenant  for  the  production  of  the 
originals,  the  covenant  to  be  confined  to  the  period  during  which  the 
assignees  should  continue  in  office.(m)  And  trustees,  where  they  retain 
the  title  deeds,  are  equally  required  to  give  attested  copies,  and  to  cove- 
nant for  the  production  of  the  documents  in  the  common  form,  with  a 
r*4.9fil  *P^o'^iso?  t^^*  '^^  lawfully  parting  with  the  deeds,  and  obtaining 
L  J  a  similar  covenant  from  the  person  to  whom  they  are  delivered, 
the  covenant  shall  be  void. 

In  a  sale  of  leaseholds  by  trustees  who  take  under  a  settlement  they 
cannot,  in  any  case,  require  from  a  purchaser  a  covenant  of  indemnity 
against  a  breach  of  the  covenants ;  for,  as  regards  themselves,  they  took 
the  lease  by  assignment,  and  therefore  cease  to  be  liable  on  the  assign- 
ment over;  and,  as  regards  a  covenant  for  the  protection  of  the  settlor, 
he  has  become  a  stranger  by  the  execution  of  the  trust  deed,  and  the 
trustees  could  neither,  in  the  absence  of  an  express  stipulation,  insist 
upon  a  benefit  to  one  with  whom  there  is  no  existing  privity,  nor  as  they 
are  bound  to  make  the  sale  the  most  beneficial  to  the  cestuis  que  trust, 
could  they  insert  a  condition  in  favour  of  a  stranger,  which  might  ope- 
rate as  a  discouragement  to  purchasers.  (??)  But  the  executor  of  a  lessee 
upon  assigning  the  term  would  be  entitled  to  such  a  covenant,  his  testa- 
tor's estate  being  liable  under  the  original  covenants  of  his  testator. 

Indeed  an  executor  is,  in  such  a  case,  entitled  'prima  facie  not  merely 
to  the  vendee's  covenant  to  indemnify,  but  also  where  the  estate  is  in 
course  of  distribution  to  have  a  portion  of  the  estate  itself  reserved  for 
the  purpose  of  forming  an  indemnity  fund,(o)  though  not  so  where  the 
risk  is  inconsiderable,  (j?)  But  of  course  there  can  be  no  claim  to  an 
indemnity  where  the  testator's  estate  is  not  liable,  as  where  the  testator 
himself  was  not  a  lessee,  but  the  assignee  of  a  lease  who  had  entered  into 

tain  a  recital  of  the  old  lease,  and  of  the  declaration  of  the  court,  in  obedience  to 
which  the  trustees  purport  to  demise  ;  Copper  Mining  Company  v.  Beach,  13  Beav. 
478 ;  Hodges  v.  Blagrave,  18  Beav.  405.  So,  if  A.  agrees  to  grant  a  lease  to  B., 
and  B.  dies,  A.  can  compel  the  executors  of  B.  to  accept  the  lease,  but  the  lease 
is  so  framed  that  the  executors  of  B.  are  guarded  against  all  personal  liability ; 
Phillips  V.  Everard,  5  Sim.  102  ;  Stephens  v.  Hotham,  1  Kay  k  Johns.  571 ;  and 
see  Staines  v.  Morris,  1  V.  &  B.  12. 

[l]  Vend,  and  Pur.  p.  61,  11th  ed.  {m)  Ex  parte  Stuart,  2  Rose,  215. 

{n)  See  Wilkins  v.  Fry,  1  Mer.  244. 

(o)  Cochrane  v.  Robinson,  11  Sim.  378;  Fletcher  v.  Stevenson,  3  Hare,  360; 
Dobson  V.  Carpenter,  12  Beavan  ;  Hickling  v.  Boyer,  3  Mac.  &  Gor.  635. 

(i?)  Dean  v.  Allen,  20  Beav.  1. 


DUTIES  OF  TRUSTEES  FOR  SALE.         371 

no  covenants.(5')  And  if  the  executor  has  assented  to  the  bequest  uncon- 
ditionally, he  has  waived  his  claim  to  indemnity. M 

In  the  assignment  of  a  cliose  in  action,  the  trustee  may  be  required  to 
give  a  power  of  attorney  to  receive  the  money  and  to  sue  in  his  name,  but 
this  should  be  accompanied  with  a  *proviso,  that  no  action  or  r^ -q^-. 
suit  shall  be  commenced  without  the  assignor's  consent,  or  else  L  ^^  J 
tendering  a  sufficient  indemnity. (*■) 

As  in  a  mortgage  accompanied  with  a  power  of  sale,  the  mortgagee, 
who  is  a  quasi  trustee,  can  under  the  power  make  a  title  to  the  purchaser 
without  the  concurrence  of  the  mortgagor,(A  a  clause  in  the  mortgage 
deed  that  the  mortgagor  shall,  if  required,  be  a  party  to  the  conveyance, 
is  considered  a  contract  for  the  exclusive  benefit  of  the  mortgagee,  and 
not  as  imposing  the  necessity  of  procuring  the  mortgagor's  consent  to 
the  sale.(tt) 

If  the  trustees  have  a  power  of  signing  discharges  for  the  purchase- 
money,  the  cesiuis  que  trust  need  not  necessarily  be  made  parties  to  the 
conveyance ;(?;)  but,  as  trustees  are  bound  to  covenant  against  their  own 
incumbrances  only,  the  cestuis  que  trust,  where  it  is  practicable,  are 
usually  made  parties  to  the  deed,  that  the  purchaser  may  have  the  benefit 
of  their  covenants  for  title  according  to  the  extent  of  their  respective 
interests. (to)  In  sales,  however,  under  the  direction  of  the  Court  of 
Chancery,  it  is  the  rule  not  to  make  the  cestuis  que  ti-ust  parties ;  for  this 
would  involve  the  necessity  of  previously  inquiring  loho  were  beneficially 
interested,  and  in  what  proportions,  whereas  it  is  a  common  proceeding 
of  the  court  to  order  a  sale  in  the  first  instance,  and  leave  the  rights  of 
the  respective  parties  to  be  settled  by  a  subsequent  adjustment. (x) 

Where  trustees  sell  by  auction,  the  auctioneer,  until  the  sale  is  com- 
pleted, is  the  agent  of  both  vendor  and  purchaser;  but  after  completion 
of  the  purchase  he  is  the  agent  of  the  vendor  only,  and  the  trustees  will 
be  answerable  if  by  any  unnecessary  delay  the  deposit  be  lost.(y) 

Trustees  for  sale  and  payment  of  debts  are  of  course  bound  at  any 
time  to  answer  inquiries  by  the  author  of  the  trust,  or  *the  per-  i-;;;  1.90-1 
sons  claiming  imder  him,  as  to  what  estates  have  been  sold  and  L  "''-' 
what  debts  have  been  paid.  (2) 

When  the  afi"airs  of  the  trust  have  been  finally  settled,  the  trustees 
will  be  entitled  to  the  possession  of  the  vouchers  as  their  discharge  to 

{q)  Garratt  v.  Lancefield,  2  Jur.  N.  S.  177.  N.  B.  It  may  be  collected  from  the 
judgment  that  the  ordinaiy  covenant  to  indemnify  had  not  been  entered  into  by 
the  testator  on  the  occasion  of  the  assignment  to  him. 

(r)  Shadbolt  v.  Woodfall,  2  Coll.  30. 

(s)  Ex  parte  Little,  3  Moll.  67. 

{t)  Corder  v.  Morgan,  18  Ves.  344;  Clay  v.  Sharpe,  cited  id.  346,  note  (6)  ;  Al- 
exander V.  Crosbie,  6  Jr.  Eq.  Rep.  518. 

(m)  Corder  v.  Morgan,  18  Ves.  347,  per  Sir  W.  Grant. 

(v)  See  Binks  v.  Lord  Rokeby,  2  Mad.  227. 

\w)  See  In  re  London  Bridge  Acts,  13  Sim.  176. 

(x)  Wakeman  v.  Duchess  of  Rutland,  3  Ves.  233,  504;  affirmed  in  D.  P.  8  B. 
P.  C.  145  ;  Colston  v.  Lilley,  3  May,  1855,  V.  C.  Stuart  at  chambers  ;  and  see  Loyd 
V.  Griffith,  3  Atk.  264. 

(y)  Edmonds  v.  Peake,  7  Beav.  239. 

(z)  Clarke  v.  Earl  of  Ormonde,  Jac.  120,  per  Lord  Eldon. 


372       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

the  cestui  que  trust;  but  the  cestui  que  trust  will  have  a  right  to  the  in- 
spection of  them. (a)     But  not  to  copies  without  paying  for  them. 

The  land  is  discharged  so  soon  as  the  fund  has  been  actually  raised, 
even  though  the  proceeds  may  be  misapplied,  and  not  reach  their  proper 
destination.  The  remedy  of  the  parties  aggrieved  is  against  the  trustees 
personally,  and  they  have  no  lien  upon  the  estate. (6) 


SECTION  II. 

THE    POWER   OF   TRUSTEES    TO   SIGN    DISCHARGES    FOR   THE   PURCHASE- 
MONEY. 

The  power  of  trustees  to  sign  discharges  for  the  purchase-money 
resolves  itself  into  two  questions  : — First.  Are  the  trustees  justified  in 
making  the  sale  ?  and.  Secondly.  Supposing  the  sale  itself  to  be  proper, 
is  the  purchaser  bound  to  see  to  the  application  of  his  purchase-money  ? 

First.  Are  the  trustees  justified  in  proceeding  to  the  sale  ? 

If  a  testator  direct  a  sale  of  his  real  estate  for  payment  of  debts  on  the 
insufficiency  of  the  personal  assets,  the  trustee  ought  not  of  course  to 
dispose  of  the  realty,  until  it  appears  the  personal  fund  is  not  equal  to 
meet  the  demands  of  the  creditors.  But  the  point  we  have  here  to  con- 
sider is,  how  will  the  purchaser  be  aifected,  and,  as  he  has  no  means  of 
investigating  the  accounts,  it  is  held  he  is  not  to  be  prejudiced  should  it 
be  proved  that  eventually  the  personal  is  sufiicient.(c)  All  that  could 
r*i9Qn  I'sasonably,  and  which  perhaps  would  be  required  *of  him,  is, 
L  "^  -I  that  he  should  apply  to  the  executor,  where  the  trustee  does  not 
sustain  that  character,  and  ask  if  the  necessity  of  the  sale  has  arisen. (cf) 
However,  a  purchaser  is  prevented  from  dealing  with  the  trustee  out  of 
court,  where  a  suit  has  been  instituted  for  the  administration  of  the 
cstateYe)  provided  at  least  the  suit  be  bona  fide,  and  not  collusive. (/) 
But  if  a  testator  give  a  power  of  sale  only  to  his  trustees  on  the  insuflGi- 
ciency  of  the  personal  estate,  then  the  purchaser  must  at  his  peril  ascer- 
tain that  the  power  can  be  exercised. (^r)  The  difference  between  a  trust 
and  a  power  is  this.  In  the  former  case,  the  trustees,  having  the  legal 
estate,  can  transfer  it  to  the  purchaser  by  their  ownership ;  and  equity, 
as  the  purchaser  had  no  opportunity  of  discovering  the  true  state  of 
things,  will  not  impeach  his  title.     But  where  there  is  a  power  merely, 

(a)  Supra,  note  (z),  per  eundem. 

[h]  Anon.  1  Salk.  153  ;  Juxon  v.  Brian,  Pr.  Ch.  143  ;  Carter  v.  Barnardiston,  1 
P.  W.  505,  see  518 ;  Hutchinson  v.  Massareene,  2  B.  &  B.  49 ;  and  see  Omerod  v. 
Hardman,  5  Ves.  736  ;  Dunch  v.  Kent,  1  Vern.  2G0  ;  Culpepper  v.  Aston,  2  Ch.  Ca. 
115;  Harrison  y.  Cage,  2  Vern.  85. 

(c)  Culpepper  v.  Aston,  2  Ch.  Ca.  115,  per  Lord  Nottingham  ;  Keane  v.  Robarts, 
4  Med.  356,  per  Sir  J.  Leach  ;  Co.  Lit.  290  b,  note  by  Butler,  sect.  14 ;  Shaw  v. 
Borrer,  1  Keen,  559  ;  but  see  Fearne's  P.  W.  121. 

{d)  See  Shaw  v.  Borrer,  ubi  supra. 

(e)  Culpepper  v.  Aston,  2  Ch.  Ca.  116,  223,  per  Lord  Nottingham;  and  see 
Walker  v.  Smallwood,  Amb.  676  ;  and  supra,  p.  328. 

(/)  Culpepper  v.  Aston,  2  Ch.  Ca.  116,  per  Lord  Nottingham. 

{g)  Culpepper  v.  Aston,  2  Ch.  Ca.  221 ;  Dike  v.  Ricks,  Cr.  Car.  335  ;  S.  C.  Sir 
W.  Jones,  327. 


DUTIES    OF    TRUSTEES    FOR    S^LE.  373 

the  insufficiency  of  tlie  personal  estate  is  a  condition  precedent;  and  if 
it  did  not  pre-exist  in  fact,  the  power  never  arose,  and  the  purchaser 
took  nothing  by  the  pretended  execution  of  it. 

Nor  is  a  purchaser  bound  to  ascertain  whether  more  is  offered  for  sale 
than  is  sufficient  to  answer  the  purposes  of  the  trust ;  for  how  is  the  pur- 
chaser to  know  what  exact  sum  is  wanted,  without  investigating  the 
accounts  ?  Besides,  the  trustees  are  entitled,  as  incident  to  their  office, 
to  raise  their  costs  and  expenses. ^A) 

But  where  a  testator  directed,  on  the  insufficiency  of  his  personal 
estate,  a  sale  in  the  first  instance  of  A.,  and  should  that  not  answer  the 
purpose,  then  of  B.,  and  the  trustees,  yi/iteen  years  after  the  testator's 
death,  contracted  for  the  sale  of  B.  first,  and  then  filed  a  bill  for  specific 
performance,  alleging  the  existence  of  debts,  and  that  A.  was  already  in 
mortgage,  or  otherwise  charged  to  the  full  value,  the  court,  considering 
it  was  unlikely  that  creditors  would  have  lain  by  for  so  many  years,  and 
that  the  non-existence  of  debts  might  therefore  be  suspected,  and  that 
what  was  ground  for  suspicion  might  be  deemed  notice  to  a  purchaser, 
determined  against  the  title. (i) 


*If  an  estate  be  devised,  charged  with  legacies  payable  at 


[*430] 


twenty-one,  the  devisee  cannot  sell  the  land  discharged  of  the 
legacies  until  the  time  of  payment  has  arrived.  The  execution  of  the 
trust  is  uncalled  for  till  that  period,  and  it  cannot  be  anticipated  for  the 
convenience  of  other  parties.  Should  the  legacies  be  raised,  and  in- 
vested by  anticipation,  the  funds  might  afterwards  become  deteriorated, 
and  the  legatees  be  defrauded  of  the  bounty  intended  them.(^-)  But 
where  a  term  was  created,  and  the  trustees  were  directed  to  raise,  if 
there  should  be  one  child,  6000/. ;  if  two,  8000?. ;  if  three  or  more, 
10,000?.  ;  and  it  was  provided  that  no  mortgage  should  be  made  until 
some  one  of  the  said  portions  should  hecome  payahle  ;  there  being  seven 
children,  four  of  whom  were  of  age,  and  three  minors,  it  was  held  that 
the  trustees  might  raise  the  whole  10,000/.  (/) 

Secondly.  Supposing  the  sale  to  be  proper,  is  the  purchaser  bound  to 
see  to  the  application  of  his  purchase-money  ? 

It  is  a  rule  requiring  no  elucidation,  that  if  a  person  have  in  his  hands 
money  or  other  property  to  which  another  person  is  entitled,  he  cannot 
discharge  himself  from  liability  but  by  payment  or  transfer  to  the  rightful 
owner.  If  an  estate  be  vested  in  A.  upon  trust  to  sell  and  divide  the 
proceeds  between  B.  and  C,  in  a  court  of  law  the  absolute  ownership  is 
in  A.,  and  his  receipt,  therefore,  will  discharge  the  purchaser ;  but  in 
equity  B.  and  C,  the  cestuis  que  trust,  are  the  true  and  beneficial  pro- 
prietors, and  A.  is  merely  the  instrument  for  the  execution  of  the  settlor's 
purpose.  The  receipt,  therefore,  to  be  efi'ectual,  must  be  signed  by  B. 
and  C.  ;(m)  and  the  power  of  the  vendor  to  sign  a  discharge  for  the  pur- 
chase-money is  a  question,  not  of  conveyance,  but  of  title.(ii') 

Such  is  the  jj^ma  facie  rule  in  trusts;   but  in  every  instance  it  is 

{h)  Spalding  v.  Shalmer,  1  Vera.  301.  {i)  Pierce  v.  Scott,  1  Y.  &  C.  25t. 

\k)  Dickenson  v.  Dickenson,  3  B.  C.  C.  19. 

{I)  Gillibrand  v.  Goold,  5  Sim.  149. 

{m)  See  Weatherby  v.  St.  Giorgio,  2  Hare,  624. 

\n)  Forbes  v.  Peacock,  12  Sim.  521. 


374  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

liable  to  be  controlled  and  defeated  by  an  intention  to  the  contrary  col- 
lected from  the  instrument  creating  the  trust,  whether  that  intention  be 
expressed  or  implied. 

The  former  is  the  case,  if  the  settlor  direct  in  express  terms 
[  'idlj  ^^j^^j.  ^^^  receipts  of  A.,  the  trustee,  shall  discharge  the  pur- 
chaser from  seeing  to  the  application  of  the  purchase-money;  for  B.  and 
(J.  cannot  at  the  same  moment  claim  under  and  contradict  the  instru- 
ment— they  cannot  avail  themselves  of  the  sale,  and  reject  the  proviso 
affecting  the  receipt,  and  the  words  in  the  ordinary  power  of  attorney, 
viz.  "  to  sign  discharges  for  the  money  to  be  recovered  under  the  power, 
and  to  do  all  other  acts  as  the  principal  might  have  done,"  have  been 
held  to  carry  such  a  direction(o)  where  not  controlled  by  a  subsequent 
receipt  clause  tending  to  negative  that  intent.(p) 

In  what  cases  the  like  intention  will  be  implied,  has  never  been  satis- 
factorily ascertained.  However,  two  principles  appear  to  be  the  basis 
upon  which  most  of  the  distinctions  taken  by  the  courts  have  been 
founded. 

1.  In  the  creation  of  a  trust  for  immediate  sale,  it  is  clearly  implied, 
that  a  legal  and  equitable  discharge  for  the  purchase-money  shall  be 
signed  hy  some  one  at  the  time  of  the  sale.  There  can  be  no  conveyance 
of  the  estate  without  payment  of  the  money,  and  there  can  be  no  such 
payment  without  a  complete  discharge.  Should  the  settlor  appear  to  have 
contemplated  a  sale  at  a  time  when  the  cestuis  que  trust,  or  some  of  them, 
were  either  not  in  existence,  or  not  of  capacity  to  execute  legal  acts,  the 
intention  must  be  presumed  that  the  receipts  of  the  trustees  should  be  a 
release  to  the  purchaser. 

Thus,  where  a  deed  was  executed  in  India  for  payment  of  debts,  with 
a  proviso  that  creditors  in  India  should  be  allowed  six  months  to  come 
in,  and  those  in  Europe  eighteen  months,  and  if  any  were  under  disa- 
bility, they  should  be  further  allowed  the  like  periods  from  the  time 
the  disability  ceased.  Sir  W.  Grant  said,  "  the  deed  very  clearly  confers 
an  immediate  power  of  sale  for  a  purpose  that  cannot  be  immediately 
defined.  It  is  impossible  to  contend  that  the  trustees  might  not  have 
sold  the  whole  property  at  any  time  they  thought  fit  after  the  execution 
of  the  deed,  and  yet  it  could  not  be  ascertained,  until  the  end  of  eighteen 
months,  who  were  the  persons  among  whom  the  produce  of  the  sale  was 
r*l^9i  to  be  distributed.  If  the  *sale  might  take  place  at  a  time  when 
L  "^-l  the  distribution  could  not  possibly  be  made,  it  must  have  been 
intended  that  the  trustees  should  of  themselves  be  able  to  give  a  discharge 
for  the  produce,  for  the  money  could  not  be  paid  to  any  other  person 
than  the  trustees." (§■) 

So  where  A.  devised  certain  lands  to  his  children,  "the  same  to  be 
sold  when  the  executors  and  trustees  of  his  will  should  see  proper,  and 
the  purchase-money  to  be  equally  and  severally  divided  amongst  his 
above-named  children,"  Sir  J.  Leach  said,  "  It  is  plain  the  testator 
intended  that  the  trustees  should  have  an  immediate  power  of  sale. 

(o)  Binks  v.  Lord  Rokeby,  2  Mad.  221,  see  238,  239, 

(p)  Brasier  v.  Hudson,  9  Sim.  1. 

(?)  Balfour  v.  Welland,  16  Ves.  151,  see  156. 


DUTIES  OF  TRUSTEES  FOR  SALE.         375 

Some  of  tlic  children  were  infants,  and  not  capable  of  signing  receipts. 
I  must  therefore  infer,  that  the  testator  meant  to  give  to  the  trustees  the 
power  to  sign  receipts,  being  an  authority  necessary  for  the  execution  of 
his  declared  purpose. "(r) 

As  to  cesfuis  que  trust  who,  after  the  date  of  the  instrument,  go  out 
of  the  jurisdiction  the  general  rule  does  not  apply,  for  it  cannot  be  said 
that  the  settlor  meant  the  trustees  to  sign  receipts  for  them,  the  presump- 
tion being  the  other  way  ;  but  though  a  power  of  signing  receipts  cannot 
in  this  case  be  implied,  it  may  be  contended  that  the  rule  of  equity 
obliging  a  purchaser  to  see  to  the  application  of  his  purchase-money, 
operates  only  where  the  cestui  que  trust  is  accessible  to  receive  the  money, 
and  that  when  he  is  abroad  the  purchaser  may  pay  to  the  trustee,  and 
need  not  look  to  the  application.  Of  this  opinion  appears  to  be  Lord  St. 
Leonards,  who  remarks,  "  The  receipt  of  the  trustee  would  certainly  have 
been  a  sufficient  discharge  for  the  shares  of  the  infant,  and  also,  it  is  con- 
ceived, for  the  share  of  the  cestui  que  trust  who  was  abroad.  It  would 
be  difficult  to  maintain  that  the  absence  of  a  cestui  que  trust  in  a  foreign 
country  should,  in  a  case  of  this  nature,  impede  the  sale  of  the  estate. "(s) 

2.  If  a  sale  be  directed,  and  the  proceeds  are  not  simply  to  be  paid 
over  to  certain  parties,  but  there  is  a  special  trust  annexed,  the  presump- 
tion must  be  that  the  settlor  meant  to  *confide  the  execution  of  j.^  ,00-1 
the  trust  to  the  hands  of  the  trustee,  and  not  of  the  purchaser.(^)  •-       '  J 

Thus,  Lord  Thurlow,  where  a  settlement  contained  a  power  of  sale, 
and  it  was  directed  that  the  trustees  should  receive  the  purchase-money, 
and  lay  it  out  on  a  new  purchase  to  the  like  uses,  and  till  that  was  done 
should  invest  it  in  government  funds,  observed,  '^  As  to  the  power  which 
the  trustees  have  of  giving  a  discharge,  it  is  true,  that  when  land  is  to 
be  sold,  and  a  particular  debt  is  to  be  paid  with  it,  the  purchaser  is  bound 
to  see  to  the  application  of  the  purchase-money.  But  in  cases  where 
the  application  is  to  a  payment  of  debts  generally,  or  to  a  general  laying 
out  of  the  money,  I  know  of  no  case  which  lays  down,  or  any  reasoning 
in  any  case  which  goes  the  length  of  saying,  that  a  purchaser  is  so 
bound. "((A  So  where  a  trust  was  created  for  payment  of  debts.  Sir  W. 
Grant,  in  holding  the  receipt  of  the  trustees  to  be  a  release  to  the  pur- 
chaser, said,  <'it  was  evident  from  the  whole  tenor  of  the  deed  that  the 
parties  contemplated  and  intended  that  all  the  money  to  be  produced  by 
the  sale  should  come  into  the  hands  of  the  trustees ;  should  be  managed 
by  them  until  distribution ;  should  be  placed  out  in  their  names ;  and 

(r)  Sowarsby  v.  Lacy,  4  Mad.  M2  ;  Lavender  v.  Stanton,  6  Mad.  4G ;  and  see 
Breedon  v.  Breedon,  1  R.  &  M.  413  ;  Cuthbert  v.  Baker,  Vend.  &  Purch.  842,  843, 
11th  ed.  (s)  Vend.  &  Purch.  844,  Uth  ed. 

(t)  See  Glynn  v.  Locke,  2  Drur.  &  War.  11 ;  Ford  v.  Ryan,  4  Ir.  Ch.  Rep.  342. 

(m)  Doran  v.  Wiltshire,  3  Sw.  609.  In  Cox  v.  Cox,  1  Kay  &  John.  251,  Vice- 
Chancellor  Wood  held,  that  powers  of  sale  and  exchange  do  not  imply  a  power  of 
signing  receipts  ;  that  the  latter  power  was  by  no  means  one  inserted  as  of  course 
in  legal  instruments,  but  often  excluded,  and  when  excluded  was  never  implied, 
except  under  very  special  circumstances.  The  question  in  that  case  arose  upon 
the  construction  of  a  will  which  gave  to  the  tenants  for  life  the  like  powers  of 
selling  and  exchanging  as  were  contained  in  a  settlement  referred  to,  and  in  which 
were,  not  only  powers  of  sale  and  exchange,  but  also  a  power  of  signing  receipts, 
and  the  vice-chancellor  was  of  opinion  that  the  powers  of  sale  and  exchange  only, 
without  the  power  of  signing  receipts,  were  incorporated  by  reference. 


37G  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

should  by  them  be  ultimately  distributed."(v)     And  again,  where  a  person 
directed  his  executors  to  convert  all  his  real  and  personal  estate  into 
money,  and  lend  the  same  upon  good  security  upon  trust  to  pay  the 
interest  to  his  wife  for  life,  with  remainder  over,  Sir  J.  Leach  held, 
<<  that  the  authority  given  by  the  testator  to  lay  out  and  invest  the  money 
was  an  authority  to  do  all  acts  essential  to  *the  trust,  and  neces- 
L         J  sarily  therefore   to   give   discharges   to   the   borrowers  of  the 
money." (w;)     And  an  opinion  of  Mr.  Booth  shows  the  practice  of  the 
profession,  even  in  his  time,  to  have  been  in  conformity  with  these  doc- 
trines.    A  testator  had  directed  his  trustees  to  sell  and  invest  the  pro- 
ceeds upon  the  trusts  thereinafter  mentioned,  and  then  gave  his  wife  an 
annuity  of  50^.  a  year,  for  her  life,  to  be  paid  out  of  the  proceeds,  and, 
subject  thereto,  gave  the  fund  to  his  son ;  but  in  ease  of  his  death  under 
twenty-one,  to  the  person  entitled  to  his  Taunton  lands.     Mr.  Booth 
wrote,  <'  I  am  of  opinion,  that  all  that  will  be  incumbent  on  the  pur- 
chaser to  see  done  will  be  to  see  that  the  trustees  invest  the  purchase- 
money,  in   their  names,  in  some  of  the  public  stocks  or  funds,  or  on 
government  securities,  and  in  such  case  the  purchaser  will  not  be  answer- 
able for  any  misapplication,  after  such  investment  of  the  money,  of  any 
moneys  which  may  arise  by  the  dividends  or  interest,  or  by  any  disposi- 
tion of  such  funds,  stocks,  or  securities,  it  not  being  possible  that  the 
testator  should  expect  from  ani/  purchase?-  any  further  degree  of  care  or 
circMmspection  than  during  the  time  that  the  transaction  for  the  pur- 
chase was  carrying  on,  and  therefore  the  testator   must  be   supposed  to 
place  his  sole  confidence  in  the  trustees,  and  this  is  the  settled  practice  in 
these  cases,  and  I  have  often  advised  so  much,  and  no  more,  to  be  done." 
And  in  this  opinion  Mr.  Wilbraham  also  concurred. (cc) 

To  the  principle  under  consideration  must  be  referred  the  well-known 
rule,  that  a  purchaser  is  not  bound  to  see  to  the  application  of  his  money 
where  the  trust  is  for  payment  of  debts  generally ;  for  to  ascertain  who 
are  the  creditors,  and  what  is  the  amount  of  their  respective  claims,  is 
matter  of  trust  involving  long  and  intricate  accounts,  and  requiring  the 
production  of  vouchers,  which  the  purchaser  would  have  no  right  to 

.  require. (y)  So  if  the  trust  be  for  payment  of  a  particular  *debt 
L         -I  named,  and  of  the  testator's  other   debts. (^)     So  if  the   trust 

{v)  Balfour  v.  Welland,  16  Ves.  511,  see  157. 

{w)  Wood  V.  Harman,  5  Mad.  368  ;  Locke  v.  Lomas,  5  De  Gex  &  Sm.  326. 

(x)  2  Cas.  &  Op.  114. 

\y)  Forbes  v.  Peacock,  11  Sim.  152  ;  and  see  S.  C.  12  Sim.  528;  1  PhiU.  717  ; 
Stroughill  V.  Anstey,  1  De  G.  M.  &  G.  635;  Dowling  v.  Hudson,  17  Bear.  248  ;  Cul- 
pepper V.  Aston,  2  Ch.  Ca.  223  ;  Watkins  v.  Cheek,  2  S.  &  S.  205,  per  Sir  J.  Leach  ; 
Anon.  Mose.  96 ;  Hardwick  v.  Mynd,  1  Anst.  109  ;  Johnson  v.  Kennett,  3  M.  &  K. 
630,  per  Lord  Lyndhurst ;  Rogers  v.  Shillicorne,  Amb.  189,  per  Lord  Hardwicke ; 
Walker  v.  Smallwood,  id.  677,  per  Lord  Camden  ;  Barker  v.  Duke  of  Devonshire, 
3  Mer.  310  ;  Abbot  v.  Gibbs,  1  Eq.  Ca.  Ab.  358  ;  Binks  v.  Rokeby,  2  Mad.  238, 
per  Sir  T.  Plumer;  Dunch  v.  Kent,  1  Vern.  260,  admitted;  Elliot  v.  Merryman, 
Barn.  78;  Smith  v.  Guyon,  1  B.  C.  C.  186,  and  cases  cited,  ib.note;  Ithell  v. 
Beane,  1  Ves.  215,  per  Lord  Hardwicke  ;  Lloyd  v.  Baldwin,  ib.  173,  j^er  eundem  ; 
Dolton  V.  Hewen,  6  Mad.  9;  Ex  parte  Turner,  9  Mod.  418,  per  Lord  Hardwicke  ; 
Gosling  V.  Carter,  1  Coll.  644;  Eland  v.  Eland,  1  Beav.  235;  S.  C.  4  M.  &  Cr. 
420;  Jones  v.  Price,  11  Sim.  557;  and  see  Currer  v.  Walkley,  2  Dick.  649,  cor- 
rected from  Reg.  Lib.  3  Vend,  and  Purch.  168,  10th  ed. 

[z)  Robinson  v.  Lowater,  17  Beav.  592;    5  De  Gex,  Mac.  &  Gord.  272. 


DUTIES  OF  TRUSTEES  FOR  SALE.         377 

be  for  payment  of  debts  and  legacies,  the  purchaser  is  equally  protected  ; 
for  as  the  discharge  of  the  debts  must  precede  that  of  the  legacies,  and 
the  purchaser  is  not  called  upon  to  mix  himself  up  with  the  settlement 
of  the  debts,  he  is  necessarily  absolved  from  all  liabilities  in  respect  of 
the  legacies. (cf)  But  where  the  trust  is  for  payment  of  imrticidar  or 
scheduled  debts  only,(6)  or  of  legacies  only,{<-)  then,  as  there  is  no  trust 
to  be  executed  requiring  time  or  discretion,  but  the  purchase-money  is 
simply  to  be  distributed  amongst  certain  parties,  there  is  no  reason  why 
the  purchaser  should  not,  under  the  general  rule,  be  expected  to  see  that 
the  purchase-money  finds  its  way  into  the  proper  channel.  And  the 
purchaser,  where  legacies  only  are  charged,  is  still  bound  to  see  to  the 
application  of  his  money,  though  by  a  late  act,(^Z)  the  real  estate  of  all 
persons  deceased  since  the  29th  of  August,  1833,  is  liable  (in  the  hands 
of  the  heir  or  devisee,  but  not  by  *way  of  lien  to  bind  purchasers)  ^^.^^-. 
to  the  payment  of  debts  generally,  whether  by  specialty  or  simple  L  J 
contract.(c)  And  even  where  the  estate  is  subjected  by  the  testator  to  a 
trust  for  payment  of  debts  generally,  the  purchaser  will  not  be  indemni- 
fied by  the  receipt  of  the  trustee  if  there  be  any  collusion  between 
them;(/)  or  if  the  purchaser  have  notice  from  the  intrinsic  evidence  of 
the  transaction  that  the  purchase-money  is  intended  to  be  misapplied  ;(r/') 
or  if  a  suit  has  been  instituted  which  takes  the  administration  of  the 
estate  out  of  the  hands  of  the  trustees. (/t) 

And  if  the  purchaser  is  dealing  with  trustees  at  a  great  distance 
of  time,  and  when  the  trust  ought  long  since  to  have  been  executed,  the 
purchaser  is  bound  to  inquire  and  satisfy  himself  to  a  fair  and  reasonable 
extent,  that  the  trustees  are  acting  in  the  discharge  of  their  duty.(i) 

It  is  evident,  from  what  has  been  stated,  that  the  exemption  of  the 
purchaser  from  seeing  to  the  application  of  the  purchase-money  depends 
as  a  general  rule  upon  the  settlor's  intention  ;  and  if  so,  the  question 
must  be  viewed  with  reference  to  the  date  of  the  instrument,  and  not  as 
affected  by  circumstances  which  have  subsequently  transpired.  ''  The 
deed,"  said  Sir  W.  Grant,  "  must  receive  its  construction  as  from  the 

{a)  Rogers  v.  Skillicorne,  Arab.  188  ;  Smith  v.  Guyon,  1  B.  C.  C.  186;  Jebb  v. 
Abbott,  and  Beynon  v.  Gollins,  cited  Co.  Lit.  290  b,  note  by  Butlfcr;  Williamson 
V.  Curtis,  3  B.  C.  C.  96 ;  Johnson  v.  Kennett,  3  M.  &  K.  630,  per  Lord  Lyndhurst; 
6  Ves.  654,  note  (a) ;  Watkins  v.  Cheek,  2  S.  &  S.  205,  per  Sir  J.  Leach  ;  Eland 
V.  Eland,  1  Beav.  235  ;  S.  C.  4  M.  &  Cr.  420  ;  Page  v.  Adam,  4  Beav.  269  ;  Forbes 
T.  Peacock,  12  Sim.  528;   1  Phill.  717. 

(6)  Doran  v.  Wiltshire,  3  Sw.  701,  per  Lord  Thurlow  ;  Smith  v.  Guyon,  1  B.  C. 
C.  186,  per  eundem,  and  cases  cited,  ib.  note  ;  Rogers  v.  Skillicorne,  Amb.  189, 
per  Lord  Plardwicke ;  Humble  v.  Bill,  1  Eq.  Ca.  Ab.  359,  per  Sir  N.  Wright ; 
Anon.  Mose.  96 ;  Spalding  v.  Shalmer,  1  Vern.  303,  per  Lord  North  ;  Abbot  v. 
Gibbs,  1  Eq.  Ca.  Ab.  358  ;  Elliot  v.  Merryman,  Barn.  81,  per  Sir  J.  Jekyll ;  Binks 
V.  Rokeby,  2  Mad.  238,  per  Sir  T.  Plumer;  Ithell  v.  Beane,  1  Ves.  215,  per  Lord 
Hardwicke;  Lloyd  v.  Baldwin,  1  Ves.  173,  joer  eundem;  and  sec  Dunch  v.  Kent,  1 
Vern.  260  ;  Culpepper  v.  Aston,  2  Ch.  Ca.  223. 

(c)  Johnson  v.  Kennett,  3  M.  &  K.  630,  per  Lord  Lj-ndhurst;  Ilorn  v.  Horn,  2 
S.  &  S.  443.    •         (d)  3  &  4  W.  4,  c.  104.  (e)  Horn  v.  Horn,  2  S.  &  S.  448. 

(/)  Rogers  v.  Skillicorne,  Amb.  189,  per  Lord  Hardwicke ;  Eland  v.  Eland,  4 
M.  &  Cr.  427,  per  Lord  Cottenhara. 

(g)  Watkius  v.  Cheek,  2  S.  &  S.  199;  Eland  v.  Eland,  4  M.  &  Cr.  427,  per  Lord 
Cottenham  ;  and  see  Stroughill  v.  Anstey,  1  De  G.  M.  &  G.  648. 

(/i)  Lloyd  V.  Baldwin,  1  Ves.  173. 

[i)  Stroughill  v.  Anstey,  1  De  G.  .M.  &  G.  654,  per  Lord  St.  Leonards. 


378  LEW  IN    ON    THE    LAW    OF    TRUSTS,    ETC. 

moment  of  its  execution.  According  to  the  frame  of  the  deed,  the  pur- 
chaser is  or  is  not  liable  to  see  to  the  application  of  the  money,  and  that 
liability  cannot  depend  on  any  subsequent  eYent."(^)  Thus,  if  a  trust 
be  created  for  payment  of  debts  and  legacies,  and  the  trustees,  after 
full  payment  of  the  debts  contract  for  the  sale  of  the  estate,  the  pur- 
chaser will  not,  upon  this  principle,  be  answerable  for  the  application  of 
the  money  in  payment  of  the  legacies.  And  so  it  has  been  held  in 
several  cases.(J)  "It  is  said,"  observed  Lord  Lyndhurst,  "that 
L  J  the  *debts  having  been  paid  out  of  the  personal  estate,  and 
nothing  remaining  but  the  legacies,  the  case  falls  within  the  general  rule 
applicable  to  cases  where  legacies  alone  are  charged  upon  the  real  estate. 
I  find  no  authority  for  such  a  proposition.  The  rule  applies  to  the  state 
of  things  at  the  death  of  the  testator ;  and  if  the  debts  are  afterwards 
paid,  and  the  legacies  alone  are  left  as  a  charge,  that  circumstance  does 
not  vary  the  general  rule."(m)  "  Otherwise,"  said  Lord  Cottenham, 
"  the  purchaser  must,  in  every  case,  go  into  an  investigation  of  the  fact 
of  how  far  the  debts  have  been  discharged — exactly  that  liability  to  which 
the  law  considers  that  he  should  not  be  subjected."(n) 

In  Forbes  v.  Peacock,(o)  a  testator  directed  his  debts  to  be  paid,  and 
gave  the  estate  to  his  wife,  (whom  he  appointed  his  executrix)  for  life, 
subject  to  his  debts  and  certain  legacies,  and  empowered  her  to  sell  the 
estate  in  her  lifetime,  and  directed  that  if  it  were  not  sold  in  her  life- 
time, it  should  be  sold  at  her  death,  and  the  proceeds  applied  in  a  man- 
ner showing  that  they  were  intended  to  pass  through  the  hands  of  the 
executors,  and  the  testator  requested  certain  persons  to  act  as  executors 
and  trustees  with  his  wife.  The  widow  lived  twenty-five  years,  and  after 
her  death  the  surviving  executor  contracted  for  the  sale  of  the  estate. 
The  vice-chancellor  of  England  held  that,  after  so  long  lapse  of  time 
from  the  testator's  death,  the  purchaser  had  a  right  to  ask  if  the  debts 
had  been  paid,  and  if  he  received  no  answer,  it  amounted  to  notice  that 
they  had  been  paid,  and  he  must  see  to  the  application  of  his  purchase- 
money.  "  My  notion,"  he  said,  "  of  the  law  is,  that  where  a  testator  has 
directed  all  his  debts  to  be  paid,  and  then  appoints  certain  persons  his 
executors  and  trustees,  if,  at  any  time  after  his  death,  those  who  have 
the  power  sell  any  part  of  the  testator's  real  estates,  and  nothing  is  said 
about  the  matter,  the  purchaser  will  have  a  good  title,  because  upon  the 
r*ziQ«T  ^^^^  ^^  *''^^  ^^^^  there  is  a  charge  of  debts,  and  non  constat  that 
L  -J  all  the  debts  have  been  paid.  At  the  same  time  I  think  that  if 
it  should  appear  to  be  highly  probable,  at  the  time  when  the  executors 
propose  to  sell,  that  the  debts  have  been  paid,  a  very  important  question 
may  arise,  whether  a  good  conveyence  can  be  made  by  them  alone,  and 
whether  the  concurrence  of  the  persons  interested  in  the  proceeds  of  the 

{k)  Balfour  V.  Welland,  16  Ves.  156. 

{I)  Johnson  v.  Kennett,  3  M.  &  K.  624,  reversing  S.  C.  6  Sim.  384 ;  Eland  v. 
Eland,  4  M.  &  Cr.  420  ;  Page  v.  Adam,  4  Bear.  269;  Stroughill  v.  Anstey,  I  De 
G.  M.  &  G.  635. 

(m)  Johnson  v.  Kennett,  3  M.  &  K.  631. 

In)  Eland  y.  Eland,  4  M.  &  Cr.  428. 

(o)  11  Sim.  152  ;  12  Sim.  528  ;  11  M.  &  W.  637  ;  1  Phill.  Ill :  see  1  De  G.  M. 
&  G.  650. 


DUTIES  OF  TRUSTEES  FOR  SALE.         379 

sale  may  not  be  necessary.  It  strikes  me,  tterefore,  that  wlien  the  ob- 
jection is  made  by  the  purchaser  that  the  executors  cannot  make  a  good 
title  because  all  the  debts  have  been  paid,  if  the  question  is  put  hy  him 
simply,  are  there  or  are  there  not  any  debts  remaining  unpaid,  he  has  a 
right  to  an  answer." (^p^  And  on  a  subsequent  day  he  observed,  "Here 
the  purchaser  has  asked  the  executor  whether  any  of  the  testator's  debts 
were  unpaid  at  the  date  of  the  contract,  and  the  executors  refused  to  give 
him  an  answer.  Under  these  circumstances,  if  it  should  turn  out  that 
all  the  debts  were  paid,  I  should  hold  that  the  purchaser  had  notice  of 
that  fact,  and  that  he  was  bound  to  see  that  his  purchase-money  was  pro- 
perly applied. (g-)  What  is  the  general  principle  ?  The  court  has  drawn 
a  distinction  from  an  early  time.  It  has  said  that  if  there  is  a  mere  direc- 
tion to  sell,  and  to  divide  the  proceeds,  the  purchaser  of  the  estate  must 
see  to  the  application  of  the  purchase-money,  and  the  parties  amongst 
whom  the  proceeds  are  to  be  divided  must  give  receipts  to  the  purchaser. 
But  in  a  case  where  a  testator  charges  his  estate  with  debts,  and  directs 
that  there  shall  be  a  sale  either  by  an  express  trust,  or  a  general  power, 
the  court  says,  it  is  quite  impossible  for  the  purchaser  to  ascertain  who 
are  the  creditors  of  the  testator,  and  to  see  that  they  are  paid,  and  if  he 
is  not  bound  to  look  to  the  persons  whose  claims  are  first  to  be  satisfied, 
of  course  he  is  exempted  from  looking  to  the  claims  of  the  persons  who 
take  as  cestuis  que  trust.  That  is  the  principle  of  the  rule,  and  I  am  yet 
to  learn  how  that  principle  does  not  apply  to  a  case  where  the  purchaser 
is  in  effect  informed  that  the  debts  have  been  paid ;  and  I  consider  that 
what  is  stated  to  have  taken  place  in  this  case  between  the  vendor  and 
purchaser  does  amount  to  that."(r) 

*It  is  evident  that  this  doctrine  was  not  in  accordance  with  r:f; loq-i 
former  decisions,  and  the  cause  was  carried  upon  appeal  to  the  L  J 
lord-chancellor,  when  the  decision  below  was  reversed.  Lord  Lyndhurst 
observed,  "  If  the  purchaser  had  notice  that  the  vendor  intended  to 
commit  a  breach  of  trust,  and  was  selling  the  estate  for  that  purpose,  he 
would,  by  purchasing  under  such  circumstances,  be  concurring  in  the 
breach  of  trust,  and  thereby  become  responsible.  But  assuming  that  the 
facts  relied  upon  in  this  case  amount  to  notice  that  the  debts  had  been 
paid ;  yet,  as  the  executor  had  authority  to  sell  not  only  for  the  payment 
of  debts,  but  also  for  the  purpose  of  distribution  among  the  residuary 
legatees,  this  would  not  afford  any  inference  that  the  executor  was  com- 
mitting a  breach  of  trust  in  selling  the  estate,  or  that  he  was  not  per- 
forming what  his  duty  required.  The  case  then  comes  to  this;  if 
authority  is  given  to  sell  for  the  payment  of  debts  and  legacies,  and  the 
purchaser  knows  that  the  debts  are  paid,  is  he  bound  to  see  to  the 
application  of  the  purchase-money  ?  I  apprehend  not.  In  Johnson  v. 
Kennett,  I  held  that  the  rule  had  reference  to  the  death  of  the  testator, 
and  therefore,  that  even  supposing  the  debts  were  paid  before  the  sale 
took  place,  and  that  the  legacies  alone  remained  as  a  charge,  that 
circumstance  would  not  vary  the  general  rule.  I  see  no  reason  to  depart 
from  what  I  then  stated. "(s)     Lord  St.  Leonards,  with  reference  to  the 

{p)  12  Sim.  537.  (?)  lb.  542.  (r)  lb.  546. 

(s)  1  Phill.  V17,  and  note,  p.  722. 


380       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

judgment  of  Lord  Lyndliurst,  and  to  the  note  appended  thereto  by  his 
lordship's  authority,  observed, (^)  "  The  case  must  stand  upon  one  of  two 
o-rounds; — either  that  there  are  no  debts  within  the  knowledge  of  the 
purchaser,  and  then  it  is  indifferent  whether  there  were  no  debts  at  the 
death  of  the  testator,  or  no  debts  at  the  time  of  the  purchase,  or,  which 
is  more  satisfactory,  and  open  to  no  ambiguity,  on  the  ground  that  when 
a  testator  by  his  will  charges  his  debts  and  legacies,  he  shows  that  he 
means  to  entrust  his  trustees  with  the  power  of  receiving  the  money, 
anticipating  that  there  will  be  debts,  and  thus  providing  for  the  pay- 
ment of  them.  It  is,  by  implication,  a  declaration  by  the  testator  that 
_  he  intends  to  entrust  the  trustees  with  the  *receipt  and  applica- 
L  ^^^J  tion  of  the  money,  and  not  to  throw  any  obligation  at  all  upon 
the  purchaser  or  mortgagee.  That  intention  does  notecase  because  there 
are  no  debts.  It  remains  just  as  much  if  there  are  no  debts  as  if  there 
are  debts.  The  consistent  rule  would  be  that  if  a  trust  be  created  for 
payment  of  debts  and  legacies,  the  purchaser  or  mortgagee  should  in  no 
case  (in  the  absence  of  fraud,)  be  bound  to  see  to  the  application  of  the 
money  raised.  To  this  rule,"  his  lordship  emphatically  added,  "  I  shall 
adhere  as  long  as  I  sit  in  this  court." 

The  cases  in  which  the  the  testator,  instead  of  devising  the  estate 
upon  an  exprees  trust  for  payment  of  debts,  creates  a  charge  of  debts 
upon  his  real  estates,  seem  to  require  a  particular  examination.  It  might 
have  been  a  simple  and  useful  rule  to  hold  under  such  circumstances 
that  the  executor,  and  the  executor  only  as  the  person  who  had  adminis- 
tration of  the  personal  assets,  should,  by  virtue  of  an  implied  power,  sell 
the  real  estate  for  payment  of  the  debts ;  but  no  such  rule  exists,  and 
we  proceed  to  ascertain  as  far  as  we  can  by  what  principles  the  court 
has  been  governed. 

1.  If  a  testator  charge  his  real  estate  with  debts,  and  then  devises  it 
to  trustees  upon  certain  trusts,  which  do  not  include  or  perhaps  negative 
a  power  of  sale,  can  the  trustees  give  a  good  title  to  a  purchaser  ?  It  is 
clear  that  the  trustees  and  the  executor  can  sell  together,(»)  and  the 
question  is,  upon  what  principle  this  proceeds.  Is  the  executor  the 
vendor,  and  if  so,  has  he  a  legal  power  which  enables  him  to  pass  the 
estate  at  law  independently  of  the  trustee  ?  Vice-Chaneellor  Bruce 
seemed,  on  one  occasion  to  think  that  the  cases  of  Shaw  v.  Borrer  and 
v-^tA-\-[  Ball  V.  Harris  might  have  been  decided  on  this  *footing,(v)  and 
L         J  some  recent  cases  lean  in  the  same  direction. (?t")    But  the  notion 

{t)  Stroughill  v.  Anstev,  1  De  G.  M.  &  G.  653 ;  see  Mather  v.  Norton,  16  Jur.  309. 

(w)  Shaw  V.  Borrer,  1  Keen,  559  ;  Ball  v.  Harris,  8  Sim.  485 ;  S.  C.  4  Myl.  &  C. 
264;  Page  v.  Adam,  4  Beav.  269;  and  see  Forbes  v.  Peacock,  11  Sim.  152  ;  12 
Sim.  528;  11  M.  &  W.  630;  1  Phill.  TIT.  In  Shaw  v.  Borrer,  the  trustees  and 
executors  were  co-plaintiffs,  and  the  prayer  of  the  bill  was,  that  the  purchase- 
money  might  be  paid  to  the  executors.  This,  if  done  by  the  order  of  the  court, 
would  indemnify  the  trustees ;  but  it  does  not  follow  that  the  trustees,  on  the 
completion  of  the  sale  out  of  court,  could  have  allowed  the  executors  to  receive 
the  money.  The  question  to  whom  the  money  should  be  paid,  was  not  adverted 
to  in  the  argument,  nor  does  it  appear  to  whom  it  was  paid. 

{v)   Gosling  V.  Carter,  1  Coll.  G49. 

(w)  See  P..obinson  v.  Lowater,  17  Beav.  592  ;  5  De  Gex,  Mac.  &  Gor.  272  ;  Eids- 
forth  V.  Annstead,  2  Kay  &  Johns.  333;  Wrigley  v.  Sykes,  21  Beav.  337  ;  Storry 
V.  Walsh,  18  Beav.  568. 


DUTIES    OF    TRUSTEES    FOR    SALE.  381 

of  the  executor  passing  the  legal  estate  in  sueh  a  case  was  never  su"-- 
gested  until  the  last  few  years,  and  what  was  said  by  the  Court  of  Ex- 
chequer in  Doe  v.  Hughes,  was  at  least  true  at  the  time  it  was  spoken, 
viz.,  that  not  a  single  case  could  be  produced  in  which  a  mere  charge 
had  been  held  to  give  the  executors  a  legal  power.(x)  Have  the  execu- 
tors then  an  equitable  power,  and  is  the  trustee  who  had  the  legal  estate 
bound  to  convey  it  as  the  executor  directs  ?  This  doctrine  would  be  a 
very  rational  one,  but  there  is  no  trace  of  it  in  the  cases  themselves. 
Apparently  they  were  decided  on  the  familiar  principle,  that  in  a  court 
of  equity  there  is  no  difference  between  a  charge  of  debts  and  a  trust 
for  payment  of  debts,(?/)  and  that  the  trustees  therefore  took  the  legal 
estate  upon  the  trusts  of  the  will,  the  first  of  which  was  to  pay  the  tes- 
tator's debts.  It  is  certainly  not  a  little  remarkable  that  after  an  exami- 
nation of  all  the  authorities  upon  the  subject,  there  does  not  appear  to 
be  one  in  which  the  trustee  has  sold  alone  without  the  concui-rence  of 
the  executor.  This  circumstance,  however,  may  be  easily  accounted  for, 
as  trustees  of  the  will  are  almost  invariably  appointed  executors  also,  and 
where  that  is  not  the  case,  the  purchaser  naturally  requires  the  concur- 
rence of  the  executor,  not  on  the  ground  that  he  is  the  vendor,  but  to 
satisfy  the  purchaser  that  the  sale  of  the  real  estate  is  bona  fide  from 
the  insufficiency  of  the  personal  assets.  In  some  of  the  cases  the  court 
has  noticed,  but  not  laid  any  stress  upon,  the  circumstance  of  the  per- 
sonal representative  concurring,(2;)  or  of  the  characters  of  trustee  and 
personal  ^representative  being  combined,  but  in  others  that  fact 
has  been  passed  over  in  silence  as  a  mere  accident,  and  the  court  L  ^-1 
has  relied  on  the  general  doctrine  that  a  trustee  of  the  estate  charo-ed 
with  debts  could  sell  and  sign  a  valid  discharge  for  the  purchase- 
money.(a)  In  Doe  v.  Hughes,(6)  the  case  most  adverse  to  the  powers 
arising  from  a  charge  of  debts,  it  was  admitted  that  by  a  devise  to  trxis- 
tees  of  the  real  estate,  subject  to  a  charge  of  debts,  the  trustees  had 
thereby  imposed  upon  them  the  duty  of  raising  the  money  to  pay  the 
debts,  and  this  was  the  opinion  of  Lord  Hardwicke,  as  expressed  in  a 
case  which  we  do  not  remember  to  have  seen  cited.  In  Ex  parte  Tur- 
ner,(c)  where  the  estate  had  been  given  subject  to  debts,  but  no  express 
trust  created  for  the  purpose,  he  observed,  <<  Where  a  devise  is  general 
'in  trust,'  or  'subject  to  pay  debts,'  the  devisee  may  sell  or  mortgage, 
but  lie  must  pay  the  money  to  the  creditors  of  his  devisor;  but  if  he  do 

(z)  Doe  V.  Hughes,  6  Exch.  Rep.  231. 

(y)  Elliot  V.  Merryman,  Barn.  81 ;  Ex  parte  Turner,  9  Mod.  418  ;  Jenkins  v. 
Hiles,  6  Ves.  654,  note  (a)  ;  Bailey  v.  Ekins,  7  Ves.  323 ;  Ball  v.  Harris,  4  Mvl.  & 
C.  267  ;  Wood  v.  White,  4  Myl.  &  C.  482;  Commissioners  of  Donations  v.'Wy- 
brants,  2  Jones  &  Lat.  197. 

(z)  See  Shaw  v.  Borrer,  1  Keen,  559  ;  Forbes  v.  Peacock,  12  Sim.  537;  and  see 
V.  C.  K.  Bruce's  remarks  upon  Shaw  v.  Borrer,  and  Ball  v.  Harris,  in  Gosling  v. 
Carter,  1  Coll.  649.  But  in  Ball  v.  Harris,  the  V.  C.  of  England  observed,  "  It  is 
manifest  that  Harris  (the  trustee),  who  had  the  legal  fee,  was  competent  to  mort- 
gage that  estate  to  any  person  who  would  advance  money  for  the  benefit  of  the 
testator's  estate,"  8  Sim.  497  ;  and  it  is  equally  clear  that  Lord  Cottenham  was  of 
opinion  Harris  was  a  trustee  for  payment  of  debts  ;  4  M.  &  Cr.  267. 

(a)  See  Ball  v.  Harris,  at  the  passages  referred  to  in  last  previous  note  :  Forbes 
V.  Peacock,  12  Sim.  546. 

(h)   6  Exch.  Rep.  231.  (c)  9  Mod.  Rep.  418. 

Maech,  1858.— 25 


382  LEWIN    ON    THE    LAW    OF    TKUSTS,    ETC. 

not,  tlie  mortgagee  is  not  to  suffer,  for  in  cases  of  these  general  devises 
he  is  not  obliged  to  see  to  the  application  of  the  money  he  advances. 
But  even  in  this  case  inconveniences  often  arise,  for  where  the  estate  is 
equitable  assets,  as  it  is  where  it  is  accompanied  with  a  trust,  the  credit- 
ors who  have  not  specific  liens  upon  the  land  ought  to  come  in  equally, 
and  pari  passu.  However,  if  the  trustee  prefer  one  creditor  to  another, 
where  he  ought  not,  the  remedy  usually  is  against  the  trustee,  and  not 
the  lender  of  the  money,  for  if  the  latter  was  to  see  to  the  application 
of  his  money  upon  so  general  a  trust,  he  could  not  safely  advance  his 
money  without  a  decree  in  this  court." 

If  the  trustees  of  an  estate  charged  with  debts  can,  by  virtue  not  of 
the  express  trust  but  of  the  trust  implied  by  the  charge,  sell  the  estate, 
and  sign  a  receipt  for  the  purchase-money,  it  would  seem  to  follow  that 
they  must  not  allow  the  proceeds  to  be  paid  to  the  executor  as  not  being 
r*/idQn  *^^  proper  hand  to  receive,(c?)  *the  executor  in  that  character 
L  -I  having  no  privity  with  the  real  estate.  The  necessity,  if  it  exist, 
of  requiring  the  concurrence  of  the  personal  representative  would  often 
lead  to  practical  inconvenience,  for  on  the  death  of  the  executor  intestate 
there  would  be  no  personal  representative  of  the  testator,  and  the  per- 
sonal assets  having  been  exhausted,  there  would  be  no  fund  for  taking 
out  letters  of  administration ;  not  to  mention  that  should  the  executor 
be  held  to  have  any  concern  with  the  proceeds  of  the  real  estate,  by 
virtue  of  the  loill,  the  administrator,  not  being  appointed  by  the  will, 
would  not  succeed  to  the  power  of  the  executor,  which  should  be  borne 
in  mind  as  of  some  importance  in  considering  whether  the  sale  is  sub- 
stantially that  of  the  executor  or  of  the  trustee  who  takes  subject  to  the 
charge. 

The  practical  result  is,  that  in  the  present  state  of  the  law  a  purchaser 
cannot  be  advised  to  accept  a  title  even  from  trustees  who  sell  iincler  the 
charge  without  the  concurrence  of  the  executor,  but  numerous  purchases 
must  have  been  taken  from  the  trustee  only,  and  it  is  hoped,  as  is  pro- 
bable, that  such  purchases  would  be  supported. 

2.  If  a  testator  charge  his  debts  and  devise  the  estate  subject  to  the 
charge  to  A.  and  his  heirs  not  upon  trusts  but  for  his  own  use,  can  the 
beneficiary  in  this  case  make  a  good  title?  The  preceding  question  is 
in  fact  identical  with  this,  for  if  where  the  express  trust  negatives  a 
sale  the  trustee  can  still  make  a  good  title,  it  is  evident  that  he  can  only 
do  so  by  virtue  of  the  charge.  Any  distinction  between  the  two  cases 
would  be  in  favour  of  the  beneficial  devisee,  for  if  the  trustee  in  defiance 
of  the  express  trust  can  sell,  a  fortiori  the  devisee  can,  who  is  fettered 
by  no  such  restriction.  In  both  instances  the  charge  operates  as  a  trust 
for  payment  of  debts,  and  is  attended  with  all  the  same  consequences. 
"A  charge,"  said  Lord  Eldon,  "is  in  substance  and  eff"ect  pro  tanto  a 
devise  of  the  estate  upon  trust  to  pay  the  debts,"(c)  and  ''this,"  observed 
Lord  St.  Leonards,  on  citing  the  dictum,  '<  is  supported  by  the  current 

[d)  See  Gosling  v.  Carter,  1  Coll.  650,  where  V.  C.  Knight  Bruce  savs,  "  If  pay- 
ment ought  to  be  made  to  one,  it  is  not,  necessarily,  a  good  payment  to  make  that 
payment  to  one  and  another." 

(e)  Bailey  v.  Ekins,  7  Ves.  323. 


DUTIES  OF  TRUSTEES  FOR  SALE.         383 

of  authorities. "(/)  It  is  clear  tliat  the  devisee  *can,  where  he  i-^^j^j^-i 
also  fills  the  character  of  executor,  make  a  good  titleJr/)  and  in  L  J 
some  of  the  cases  the  court  did  not  in  terms  rely  on  the  characters  being 
combined,(/t)  but  it  is  singular  that  no  authority  can  be  found  in  which 
the  question  whether  the  devisee  alone  can  make  a  good  title  has  arisen. 

In  the  Court  of  ExchequerrA  it  was  said  that  in  a  devise  to  trustees, 
subject  to  a  charge  of  debts,  the  trustees  could  sell;  but  that  a  charge 
in  the  hands  of  a  devisee  if  the  lands  were  devised,  or  in  the  hands  of 
the  heir-at-law  if  the  lands  descended,  was  a  charge  only  in  equity. 
The  court  was  there  considering,  more  particularly,  the  question  of  legal 
powers;  but  if  it  was  intended  to  be  said  that  a  devisee,  subject  to  a 
charge,  could  not  sell  and  sign  a  receipt  for  the  money,  the  doctrine  is 
inconsistent  with  the  nature  of  a  charge  of  debts  in  equity  as  commonly 
understood.  The  prevalent  opinion  hitherto  is  believed  to  have  been 
that  a  devisee  subject  to  debts  could  sign  a  receipt  for  the  purchase- 
vaon.ey,{Jc\  and  the  cases  in  which  the  court  has  upheld  purchases  from 
a  devisee  with  the  concurrence  of  the  executor,  but  without  relying  upon 
such  concurrence,  would  be  a  trap  for  purchasers  should  the  court  now 
refuse  to  uphold  a  purchase  from  a  devisee  only.  Here,  again,  the  prac- 
tical result  is  that  a  purchaser  cannot  be  advised  at  present  to  accept  a 
title  from  the  devisee  without  the  concurrence  of  the  executor,  though 
in  the  author's  opinion  the  devisee  could  give  a  good  title. 

3.  If  a  testator  charge  his  debts  on  the  real  estate,  and  does  not  devise 
the  estate  at  all,  but  allows  it  to  descend  to  the  heir,  can  the  heir  sell 
and  sign  a  receipt  for  the  purchase-money  ?  It  appears  to  be  clear  that 
he  cannot,  for  he  takes  nothing  under  the  will,  and  cannot  therefore  be 
regarded  as  a  person  constituted  by  the  testator  the  trustee  by  implica- 
tion for  payment  of  debts ;(/)  he  can  pass  the  legal  estate,  but  he  could 
*not  sign  a  receipt;  i.  e.,  if  the  heir  misapplied  the  money  the  r:};i_i--| 
creditors  might  still  come  upon  the  estate.  L         -" 

But  in  this  case,  if  the  heir  is  disabled  from  selling,  can  the  executor 
sell  ?  for  otherwise  the  charge  of  debts  amounts  to  a  direction  for  a  chan- 
cery suit.  The  legal  question  arose  in  Doe  v.  Hughes,(m)  before  tlie 
Court  of  Exchequer.  A  testator  charged  his  Bala  houses  with  his 
debts,  and  died  intestate  as  to  them,  and  appointed  his  wife  his  execu- 
trix. The  executrix,  in  order  to  meet  the  debts  of  the  testator,  ap- 
pointed and  conveyed  the  Bala  houses  to  John  Jones  in  fee  in  trust,  by 
sale  or  mortgage,  to  raise  money  for  payment  of  the  debts.  The  heir  of 
the  testator  brought  ejectment,  and  recovered.     The  way  in  which  the 

(/)  Commissioners  of  Donations  v.  Wybrants,  2  Jon.  &  Lat.  198. 

[g)  Elton  T.  Harrison,  2  Swan.  276,  note;  Elliot  v.  Merryman,  Barn.  78;  Dol- 
ton  V.  Young,  6  Madd.  9  ;  Johnson  v.  Kennet,  6  Sim.  384;  3  .Myl.  &  K.  624;  Eland 
V.  Eland,  1  Beav.  235,  4  Myl.  &  C.  420  ;  Page  v.  Adam,  4  Beav.  269. 

iji)  Elliot  V.  Merryman,  Dolton  v.  Young,  Johnson  v.  Kennet,  Eland  v.  Eland, 
ubi  supra. 

{i)  Doe  V.  Hughes,  6  Exch.  Rep.  231. 

ik)  See  the  cases  cited  in  note  [y),  p.  441,  supra. 

{I)  See  Gosling  v.  Carter,  1  Coll.  650,  where  the  V.  C.  said  that  the  intention 
to  be  collected  was,  that  the  heir  at  law  should  have  nothing  to  do  with  it;  Doe 
v.  Hughes,  6  Exch.  Rep.  231  ;  Forbes  v.  Peacock,  11  Mee.  &  W.  637,  638. 

{m)  6  Exch.  Rep.  223. 


384.       LEWIN  OK  THE  LAW  OF  TRUSTS,  ETC. 

power  was  executed  was  peculiar,  as  not  being  a  sale  or  mortgage  in 
itself,  but  the  question  discussed  and  decided  was,  whether,  in  such  a 
case,  the  executrix  had  a  power  of  sale  or  mortgage,  and  the  court  held 
that  a  charge  had  no  operation  at  law  hut  must  he  enforced  in  equity. 
This  decision  has  been  found  much  fault  with.  The  master  of  the  rolls 
said  that  before  the  case  in  the  Exchequer  he  had  considered  the  law  to 
be  that  a  charge  of  debts  gave  the  executors  an  implied  power  of  sale.(?i) 
Otherwise,  it  is  said,  in  the  case  of  a  charge  where  the  estate  descends, 
there  can  be  no  sale  without  the  aid  of  the  court.  But  this  does  not 
appear  to  follow.  If  a  testator  expressly  direct  that  his  estate  shall  be 
sold  (without  naming  the  person,)  and  the  fund  is  to  be  distributed  in  a 
way  in  which  the  executors  alone  can  distribute  it,  a  power  of  sale  is 
given  to  the  executors  by  implication  over  the  legal  estate  even  in  courts 
of  law.(o)  By  analogy  to  this,  where  there  is  no  direction  to  sell,  but 
only  a  chal-ge  of  debts,  this  last,  though  an  umbra  in  a  court  of  law, 
creates  an  equitable  power  of  sale  or  mortgage  in  the  view  of  a  court  of 
equity,  i.  e.,  the  executor  may  contract  for  the  sale,  and  on  the  accept- 
ance  *of  the  title  by  the  purchaser,  the  person  in  whom  the  legal 
L  J  estate  is  vested  will,  as  being  a  trustee  for  the  executor,  be  com- 
pellable to  convey  as  the  executor  directs,  and  if  he  refuse,  the  legal 
estate  maybe  vested  in  the  purchaser  by  the  aid  of  the  Trustee  Acts.(p) 
In  Gosling  v.  Cavter,[p2))  Vice-Chancellor  K.  Bruce  declined  to  give  an 
opinion  whether  a  mere  charge  of  debts  gave  to  the  executors  a  power  of 
sale  either  at  law  or  in  equity,  but  would  not  compel  a  purchaser  to  take 
the  title  from  the  executor  without  the  concurrence  of  the  heir-at-law. 
In  Robinson  v.  Lowater,(2)  the  legal  estate  was  already  in  the  purchaser, 
so  that  the  legal  question  did  not  arise,  but  it  was  held  that  the  execu- 
tors had  given  the  purchaser  a  good  title.  In  Eidsforth  v.  Armstead,(r) 
Vice-Chancellor  Wood  professed  to  follow  Robinson  v.  Lowater,  and  held 
the  power  of  sale  to  be,  according  to  the  report,  in  the  trustees,  but  which 
appears  to  be  a  mistake  for  the  executors.  The  surviving  trustee  had 
devised  the  trust  estates,  and  the  devisee  therefore  could  not  sell,  but 
the  surviving  trustee  was  also  surviving  executor,  and  appointed  the  de- 
visee his  executor,  and  in  the  character  of  executor  the  devisee  might 
be  thought  to  represent  the  original  testator,  though  it  is  by  no  means 

(n)  Robinson  v.  Lowater,  17  Beav.  601;  and  see  Wrigley  v.  Sykes,  21  Beav. 
337 ;  Storry  v.  Walsh,  18  Beav.  568. 

(o)  Forbes  v.  Peacock,  11  M.  &  W.  630;  Tylden  v.  Hyde,  2  Sim.  &  St.  238; 
Bentbam  v.  Wiltshire,  4  Madd.  44. 

(p)  In  reference  to  obtaining  a  vesting  order  in  such  a  case,  see  Re  Wise,  5  De 
Gex  &  Sm.  415. 

{pp)  1  Coll.  650,  652. 

[q)  17  Beav.  592;  5  De  G.  M.  &  G.  272  ;  and  see  Storry  v.  Walsh,  18  Beav.  568. 

(r)  2  Kay  &  Johns.  333.  It  does  not  appear  how  the  purchaser  had  got  or  was 
to  get  the  legal  estate,  whether  from  the  executor,  as  having  a  legal  power,  or 
from  the  trustee,  on  the  construction  that  the  legal  fee  simple  vested  in  the  trustee 
under  the  will,  or  from  the  trustee,  as  having  the  legal  estate  during  the  life  of  H. 
Toulmin,  with  the  concurrence  of  H.  Toulmin,  as  having  the  legal  estate  in  re- 
mainder, so  as  to  extinguish  his  power  of  appointing  by  will.  The  case  loses 
much  of  its  force  from  the  amicable  manner  in  which  the  point  was  submitted  to 
the  court. 


DUTIES    OF    TRUSTEES    FOR    SALE.  3S5 

clear  that  even  then  the  power  of  sale  would  pass  to  him.(.s)  lu  Wrig- 
ley  V.  Sykes,(<)  the  master  of  the  rolls  decided  that  the  executors  could 
contract  for  the  sale  of  the  estate,  but  guarded  himself  by  saying  that 
the  court,  as  far  as  it  could,  would  certainly  secure  to  the  purchaser  a 
good  legal  estate  when  the  conveyance  was  made.  Thus  the  law  stands 
at  present,  and  it  is  conceived  that  Doe  v.  Jones  was  a  perfectly  sound 
decision  upon  the  legal  question,  and  that  no  inconvenience  will  arise  if 
the  courts  *hold  as  the  master  of  the  rolls  has  decided,  that  the  r^tAj-] 
executors  have  an  equitable  power  of  sale,  and  consequently  that  L  -■ 
the  holder  of  the  legal  estate  is  a  trustee  for  them. 

4.  Should  a  testator  charge  his  debts  on  the  real  estate,  and  then 
devise  the  estate  to  A.  and  his  heirs  beneficially,  and  the  devisee  dies  in 
the  testator's  lifetime,  so  that  the  estate  descends,  can  the  heir  in  this 
case  sell  and  sign  a  receipt  ?  If  the  heir  cannot  sell  where  the  estate  was 
never  devised,  but  left  to  descend,  d  fortiori  he  cannot  in  this  case,  for 
here  not  only  the  heir  is  not  invested  with  the  character  of  trustee  under 
the  will,  but  the  estate,  subject  to  the  charge,  was  devised  to  another 
person  who  was  therefore  intended  to  execute  the  implied  trust.  The 
machinery  contemplated  by  the  testator  failed  by  the  act  of  God,  and  no 
alternative  remains  but  that  the  trust  should  be  executed  by  the  Court  of 
Chancery. (m)  It  is  presumed  that  under  these  circumstances  it  could  not 
be  held  that  the  executors  have  a  power  of  sale.  The  devisee,  had  he 
lived,  would  have  been  the  proper  person  to  execute  the  trust,  and  a 
power  of  sale  can  not  belong  to  the  executors,  as  the  testator  could  not 
be  taken  to  have  contemplated  his  own  intestacy. 

5.  Suppose  a  testator  to  charge  his  debts,  and  to  devise  the  estate  to 
A.  for  life,  with  contingent  remainders  or  other  limitations,  which  render 
it  impossible  that  the  implied  power  of  sale  can  be  executed  by  the  devi- 
sees. This  has  occurred  in  several  cases,(i')  and  the  result  appears  to  be 
that  the  court,  if  it  can  possibly  avoid  it,  will  not  construe  a  charge  as  a 
direction  for  a  chancery  suit,  but  will  assume  that  a  power  of  sale  for 
payment  of  the  debts  was  given  to  some  one,  and  that  as  it  was  not  given 
to  the  devisees  it  must  have  been  intended  for  the  executors.  In  such 
a  case  the  executors  must  be  considered  as  having  an  equitable  power  of 
sale.  The  case  in  the  exchequer(?«)  directly  decided  that  the  executors 
have  no  power  themselves  to  pass  the  legal  estate.  Where,  in  the  case 
*supposed,  the  executors  take  an  implied  equitable  power  of  sale  r*_j^g-i 
upon  the  face  of  the  will,  it  is  immaterial  whether  the  devised  L  J 
estates  do  or  not  lapse,  except  that  the  legal  estate  will,  as  the  event  hap- 
pens, be  in  the  devisees  or  in  the  heir-at-law.  If  the  concurrence  of  the 
devisees  or  heir  in  the  sale  cannot  be  obtained,  recourse  must  be  had  to 
the  Trustee  Acts  for  the  transfer  of  the  legal  estate. 

The  true  principle  which  ought  to  govern  these  cases  would  appear  to 
be,  that  where  a  testator  devises  the  estate  to  trustees,  or  to  a  beneficiary, 

(s)  See  1  Sugd.  Powers,  145,  6th  ed.  {t)  21  Beav.  337. 

\u)  But  see  Hardwick  v.  Mynd,  1  Anst.  109. 

{v)  Gosling  V.  Carter,  1  Coll.  644 ;  Eidsforth  v.  Armstead,  2  Kay  &  John.  333  : 
Wrigley  v.  Sykes,  21  Beav.  337  ;  and  see  Robinson  v.  Lowater,  17  Bear.  592  ;  5 
De  Gex,  M.  &  G.  272. 

{w)  Doe  V.  Hughes,  6  Exch.  Rep.  223. 


386       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

and  charges  his  debts,  there  the  trustees  or  the  beneficiary  should  have 
a  power  of  sale  and  signing  receipts,  but  that  where  a  testator  charges 
his  debts,  and  does  not  devise  the  estate,  or  devises  it  in  such  a  manner 
that  there  is  no  one  who  can  execute  the  trust,  there  the  executors  should 
have  an  equitable  power  of  sale  and  signing  receipts,  and  that  the  depo- 
sitaries of  the  legal  estate  should  be  trustees  for  them,  and  bound  to  con- 
vey as  they  direct ;  but  that  where  the  testator  devised  the  estate,  and 
therefore  provided  a  hand  to  execute  the  trust,  but  the  trustee  or  devisee 
died  in  the  testator's  life-time,  there,  as  the  hand  to  execute  the  trust  has 
only  failed  by  the  act  of  God,  no  person  has  a  power  of  sale  or  signing 
receipts,  but  the  trust  can  only  be  executed  by  the  court. 

It  remains  to  notice  in  connection  with  this  subject  the  recent  case  of 
Storry  v.  Walsh, (a;)  in  which  the  master  of  the  rolls  held  that  a  devisee, 
subject  to  a  charge  of  debts  and  legacies,  may,  with  the  concurrence  of 
the  executors,  declaring  that  all  debts  and  legacies  have  been  paid,  sell 
for  his  own  private  purposes,  and  give  a  good  title  to  a  purchaser. 
This  case  resembles  that  of  an  executor,  who  is  also  specific  or  residuary 
legatee,  selling  a  chattel  interest  for  his  own  private  debt.(^)  The  autho- 
rity of  Storry  v.  Walsh  has,  however,  not  received  the  entire  approbation 
of  the  profession. (y^^ 

To  return  to  the  subject  of  trustees'  receipts  in  general.  As  the  trust 
for  sale  is  a  joint  office,  the  receipt  must  be  signed  by  all  the  trustees 
who  have  undertaken  to  act.  And  where  a  j^oiver  is  given  to  trustees 
r^AAQl  *°  discharge  the  purchaser  from  seeing  to  the  *application  of  his 
L  -J  purchase-money,  the  receipt  must  be  signed  even  by  a  trustee 
who  has  parted  with  the  estate  by  a  conveyance  to  his  co-trustees ;  for 
the  transfer  of  the  estate  at  law  carries  not  along  with  it  the  confidence 
in  equity. (s)  But  the  receipt  need  not  be  signed  by  a  trustee  who  has 
disclaimed,  for  by  the  efi"ect  of  disclaimer  the  acting  triistees  are  put 
exactly  in  the  same  plight  as  if  the  renouncing  trustee  had  never  been 
mentioned. (a)  It  was  formerly  held,  that  a  trustee  who,  with  the  inten- 
tion of  disclaiming,  released  the  estate  to  his  co-trustees  should  be  con- 
sidered to  have  acted  -,(^6)  but  the  more  liberal  construction  of  the  present 
day  appears  to  be,  that  a  conveyance  bona  fide  executed  with  the  inten- 
tion of  disclaiming  shall,  in  despite  of  the  want  of  formality,  have  the 
force  and  efi"ect  of  a  disclaimer.(c) 

As  a  trust  cannot  be  delegated,  it  follows  that  if  A.  and  B.  be  trustees 
for  payment  of  debts,  and  they  convey  the  estate  to  C.  upon  the  like 
trusts,  the  purchaser  would  not  be  safe  in  payment  of  his  purchase-mo- 
ney upon  the  receipt  of  C.  Such  would  appear  to  be  the  correct  doctrine 
upon  principle ;  but  in  Hardwick  v.  Mynd(fZ)  it  was  ruled  by  the  Court 
of  Exchequer  to  the  contrary.     In  this  case  the  executors  and  trustees 

{x)  18  Beav.  559.  {y)  See  infra. 

{yy)  Colyer  v.  Finch,  3  Jur.  N.  S.  25,  argument  of  Lord  Chancellor  in  moving 
the  House. 

{z)  Crewe  v.  Dicken,  4  Ves.  97. 

(a)  Adams  v.  Taunton,  5  Mad.  435  ;  Hawkins  v.  Kemp,  3  East,  410;  Smith  v. 
Wheeler,  1  Vent.  128. 

{h)  Crewe  v.  Dicken,  ubi  supra.  (c)  See  supra,  p.  233. 

{d)  1  Anst.  109  ;  and  see  Braybroke  v.  Inskip,  8  Yes.  432. 


DUTIES  OF  TRUSTEES  FOR  SALE.         337 

renounced  probate,  and  (probably  witli  the  intention  of  disclaiming)  con- 
veyed the  estates  to  C,  the  heir-at-law.  It  might  therefore  be  argued 
that  as  the  trustees,  by  disclaiming,  vested  the  estate  in  the  heir,  he  was 
properly  the  trustee  to  sell  or  mortgage.  It  would  be  diflScult,  however, 
to  maintain  that  the  heir  under  such  circumstances  could  sign  a  receipt, 
and  certainly  the  court  did  not  put  it  upon  this  ground,  but  said  that  the 
mortgages  if  made  by  the  trustees  would  have  been  good,  and  that  they 
were  in  fact  made  by  them,  as  they  had  deputed  C.  to  act  for  them  in 
the  trust.     Such  a  doctrine  at  the  present  day  could  not  be  supported. 

As  a  general  rule,  if  a  power  be  given  to  trustees,  the  exercise  of 
which  is  arbitrary,  and  the  settlement  contains  no  *proviso  for  i-^.rnn 
the  appointment  of  new  trustees  with  similar  powers,  it  is  not  L  -I 
competent  for  the  court,  on  the  substitution  of  new  trustees  by  its  own 
inherent  jurisdiction,  to  invest  such  trustees  with  that  arbitrary  power. 
But  an  authority  to  sign  receipts  is  not  a  mere  power,  but  enters  into  the 
substance  of  the  trust ;  that  is,  it  is  so  interwoven  with  the  trust  itself  that 
there  can  be  no  execution  of  the  trust  without  the  accession  of  the  power ; 
and  in  such  cases  the  appointment  of  new  trustees  by  the  court  may  be 
taken  to  include  the  power.  Thus,  suppose  A.  and  B.  are  trustees  of  an 
estate  to  sell  for  payment  of  debts,  or  to  sell  for  the  purpose  of  distribution, 
at  their  discretion,  amongst  children  who  are  infants,  and  on  the  death 
of  A.  and  B.  the  court  appoints  C.  and  D.  upon  the  like  trusts ;  if  C. 
and  D.  cannot  sign  receipts,  they  cannot  sell,  and  their  appointment  as 
trustees  was  nugatory.  The  court  must  have  intended  them  to  act  in 
the  execution  of  the  trust ;  and  if  so,  they  must  be  authorized  to  give 
discharges  to  the  purchaser. (e)  If,  indeed,  the  trust  can  be  effectuated 
without  the  intervention  of  the  power,  as  where  the  proceeds  are  to  be 
distributed  between  E.  and  F.,  who  are  capable  of  signing  receipts,  there 
the  argument  has  no  application,  and  the  necessity  for  the  power  does 
not  exist. 

It  sometimes  happens  that  the  trustees  had  clearly  at  first  a  power  of 
signing  receipts,  but  subsequently,  by  a  breach  of  trust  or  some  irregu- 
larity in  the  administration  of  the  estate,  the  fund  has  got  out  of  its 
proper  channel,  and  then  the  question  arises,  whether,  if  the  person  who 
ought  never  to  have  had  possession  of  the  fund  intend  to  restore  it  to 
its  proper  state,  the  trustees  can  sign  a  receipt.  It  may  be  said  that  as 
the  power  never  contemplated  a  breach  of  trust,  it  would  not  be  safe  to 
consider  the  exercise  of  the  power  as  an  indemnity,  if  the  money  cannot 
be  properly  paid  to  the  trustees  upon  any  other  ground :  on  the  other 
hand,  if  the  fund  be  reinstated  m  sjiccie,  so  that  it  is  standing  in  the 
exact  form  in  which  the  trust  required  it,  and  in  the  names  of  the  per- 
sons whom  the  *settlement  appointed  the  trustees,  how  can  it  be  r^tc-i-i 
said  that  in  such  a  state  of  things  any  liability  can  remain  ?(/)     L         J 

Where  the  trust  estate  is  in  mortgage,  and  the  money  receivable  by 
the  trustees  is  applicable  either  wholly  or  in   part  in  payment  of  the 

(«)  See  Drayson  v.  Pocock,  4  Sim.  283 ;  Byam  v.  Byam,  19  Boav.  58  ;  Bartley 
v.  Bartley,  3  Drew.  385  ;  Lord  v.  Bunn,  2  Y.  &  C.  Ch.  Ca.  98. 

(/)  See  Lauder  v.  Weston,  3  Drew.  389  ;  Hausou  v.  Beverley,  Vend.  &  Purch. 
848,  11th  ed. 


388       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

mortgage,  of  course  the  trustees  may  sell  and  sign  a  receipt  for  the  dif- 
feren'ce,  or,  if  there  be  no  surplus  beyond  the  mortgage,  may  sell  with- 
out signing  any  receipt ;  for  the  circumstances  to  which  the  receipt 
clause^'was  meant  to  apply,  have,  in  the  one  case,  arisen  only  partially, 
and  in  the  case  other  not  at  all. 

Where  the  trustees  have  a  power  of  signing  receipts,  it  has  been  held 
not  to  be  necessary  that  the  trustees  who  sign  the  receipts  should  them- 
selves actually  receive  the  money,  provided  it  be  paid  to  some  person  by 
their  direction,  and  the  transaction  does  not  on  the  face  of  it  imply  a 
breach  of  trust.  Thus,  where  the  purchase-money  was  expressed  in  the 
deed  to  be  paid  to  the  trustee,  and  a  receipt  by  the  trustee  was  endorsed, 
but  in  fact  the  money  was  paid,  by  the  direction  of  the  trustee,  to  the 
tenant  for  life ;  the  master  of  the  rolls  said,  that  the  purchaser  was 
bound  to  pay  the  money  as  the  trustee  directed,  and  having  obeyed  that 
direction  was  exonerated  from  the  consequences.  Various  transactions 
might  have  occurred  between  the  trustee  and  cestuis  que  trust,  (such  as 
the  execution  of  a  previous  mortgage  on  sufficient  security,)  which  would 
make  such  a  payment  perfectly  legitimate. (^)  The  court  in  this  case 
was  protecting  a  bona  fide  purchaser,  and  the  principle  here  laid  down 
must  be  applied  with  great  caution.  A  purchaser  who  has  paid  his 
money  to  another  by  the  direction  of  the  trustee  maybe  protected  under 
the  special  circumstances  of  the  case,  but  no  purchaser  who  has  the 
money  still  in  his  pocket  can  be  advised  to  pay  to  any  one  but  to  the 
trustee  personally. (A) 

The  following  observations  of  Lord  St.  Leonard's  upon  the  subject  of 
trustees'  receipts,  deserve  every  attention.     "  Where,"  he  say,  "  a  pur- 
^  chaser  is  bound  to  see  the  money  applied  ^according  to  the  trust, 

L  -1  and  the  trust  is  for  payment  of  debts  or  legacies,  he  must  see  the 
money  actually  paid  to  the  creditors  or  legatees.  In  cases  of  this  nature, 
therefore,  each  creditor  or  legatee,  upon  receiving  his  money,  should 
give  as  many  receipts  as  there  are  purchasers,  so  that  each  purchaser 
may  have  one ;  or  if  the  creditors  or  legatees  are  but  few  they  may  be 
made  parties  to  the  conveyance.  Another  mode  by  which  the  purcha- 
sers may  be  secured  is  an  assignment  by  all  the  creditors  and  legatees  of 
their  debts  and  legacies  to  a  trustee,  with  a  declaration  that  his  receipts 
shall  be  sufficient  discharges,  and  then  the  trustee  can  be  made  a  party 
to  the  several  conveyances.  Sometimes  a  bill  is  filed  for  carrying  the 
agreement  into  execution,  when  the  purchase-money  is  of  course  directed 
to  be  paid  into  court,  and  this  is  the  surest  mode,  because  the  money 
will  not  be  paid  out  of  court  without  the  knowledge  of  the  purchaser." (^) 
In  the  preceding  discussion  it  has  been  stated  as  the  fundamental 
principle,  that  a  purchaser  is  in  all  cases  hound  to  see  to  the  application 
of  his  purchase-money ,  unless  a  positive  intention  to  the  contrary  on  the 
part  of  the  settlor  he  either  expressed  or  implied  in  the  instrument 
creating  the  trust.  Such  indeed  is  the  conclusion  to  which  the  authori- 
ties would  seem  to  conduct  us  ;  but,  independently  of  precedent,  it  may 
be  suggested  that  the  better  principle  would  be,  ihvii,  p)rima  facie,  a 

{g)  Hope  Y.  Liddell,  21  Beav.  202-3. 

{h)  See  In  re  Fishbournc,  9  Ir.  Eq.  Rep.  340.     {i)  Vend.  &  Purch.  848,  11th  ed. 


DUTIES  OF  TRUSTEES  FOR  SALE.         389 

direction  to  sell  should  imply  in  all  cases  a  power  of  signing  discharges  ; 
hut  that  lohere  it  loas practicable,  und  no  impediment  to  the  execution 
of  the  trust  was  thereby  created,  the  purchaser  should  pay  his  money 
directly  to  the  party  hencficiaUy  entitled.  The  distinction  between  the 
two  principles  is  very  material.  According  to  the  former  rule,  if  a  trust 
be  created  for  payment  of  debts  and  legacies,  and  the  debts  be  paid,  and 
then  the  trustee  sell,  though  the  purchaser  have  notice  of  all  debts 
having  been  discharged,  he  is  nevertheless  not  bound  to  see  to  the  appli- 
cation of  his  purchase-money,  because  there  was  an  implied  intention  by 
the  settlor  that  the  receipts  of  trustees  should  be  sufficient  acquittances ;(/.;) 
but,  by  the  operation  of  the  latter  *rule,  the  purchaser  u^ouldhe  j.^,  ,0-1 
bound,  for  the  necessity  of  his  paying  the  money  immediately  to  L  ^ 
the  legatees  would  not,  if  they  were  of  age,  prevent  the  completion  of 
the  sale,  and  therefore  no  reason  appears  why  the  purchaser  should  be 
exempted  from  seeing  to  the  application.  Again,  suppose  a  trust  for 
sale,  with  a  direction  to  distribute  the  proceeds  between  A.,  B.,  and  C, 
and  that,  after  the  date  of  the  instrument,  C.  quits  the  country  or  cannot 
be  found.  According  to  the  first  principle,  as  the  absence  of  C.  was  not 
an  event  in  the  contemplation  of  the  settlor,  and  no  inference  can  be 
drawn  that  he  meant  the  trustees  to  sign  receipts,  it  follows  that  the  sale 
is  rendered  impossible,  and  the  contradiction  arises,  that  the  settlor 
having  in  express  terms  directed  a  sale,  and  it  being  admitted  that  the 
will  of  the  settlor  is  authoritative,  yet  the  execution  of  that  intention  is 
intercepted  by  the  construction  of  equity.  "  It  were  difficult,"  says  Sir 
E.  Sugden,  "  to  maintain  that  the  absence  of  a  cestui  que  trust  in  a 
foreign  country  should,  in  a  case  of  this  nature,  impede  the  sale  of  the 
estate,"(A  yet  to  such  a  result  the  rule  in  question,  if  there  were  no 
exception  to  it,  would  apparently  lead.  But  according  to  the  other 
principle  suggested,  no  such  obstacle  arises.  The  receipts  of  the  trustees 
would  i\iQM  prima  facie  be  discharges,  as  necessary  to  the  execution  of 
the  sale ;  and  as  C.  is  not  at  hand,  the  purchaser  in  respect  of  G.'s 
share  in  the  purchase-money  could  not  be  called  upon  to  observe  a  rule 
that  would  interpose  a  bar  to  the  accomplishment  of  the  expressed  pur- 
pose of  the  settlor. 

As  executors  are  invested  with  the  character  of  trustees,  it  may  be 
proper  to  introduce  a  few  remarks  upon  the  large  powers  allowed  to  them 
in  disposing  of  the  assets. 

On  the  death  of  the  testator  the  personal  estate  vests  wholly  in  the 
executor,  and  to  enable  him  to  execute  the  office  with  facility,  the  law 
permits  him,  with  or  without  the  concurrence  of  any  co-execu-  r^^^^^-i 
tor,(??i)  to  sell  or  even  to  mortgage,(«)  by  actual  *assignment  or  L         -J 

{k)  See  supra,  439,  440. 

(Z)  Vend.  &  Purch.  844,  11th  ed. ;  and  see  Forbes  v.  Peacock,  12  Sim.  545; 
Ford  V.  Ryan,  4  Ir.  Ch.  Rep.  342. 

{m)  Scott  V.  Tyler,  2  Dick.  T25,  per  Lord  Thurlow. 

(n)  Bonney  v.  Ridgard,  1  Cox,  145,  see  148  ;  Scott  v.  Tyler,  2  Dick.  T25,  per 
Lord  Thurlow ;  Mead  v.  Orrery,  3  Atk.  240,  per  Lord  Hardwicke ;  Andrew  v. 
Wrigley,  4  B.  C.  C.  138,  per  Lord  Alvanley  ;  M'Leod  v.  Drunimond,  17  Ves.  154, 
per  Lord  Eldon ;  Keane  v.  Robarts,  4  Mad.  357,  per  Sir  J.  Leach  ;  and  see  Hum- 


390       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

by  equitable  cleposit,(o)  with  or  without  a  power  of  sale,(p)  all  or  any 
part  of  the  assets,  legal  or  equitable  ;[q)  and  though  liable  to  render  an 
account  to  the  court,  he  cannot  be  interrupted  in  the  discharge  of  his 
office  by  any  person  claiming  either  dehors  the  will,  as  a  creditor,  or 
under  it,  as  a  legatee.     The  creditor  has  merely  a  demand  against  the 
executor  personally,(/-)  ih.Q  pecuniary  or  specific  legatee  is  not  entitled  to 
the  legacy  or  bequest  until  the  executor  has  assented, (s)  and  the  resi- 
duary legatee  has  no  lien  until  the  estate  has  been  liquidated  and  cleared 
of  all  liabilities,  both  deJiors  and  under  the  will.(^)     Upon  the  sale  of 
the  chattel,  the  purchaser  is  not  concerned  to  see  to  the  application  of 
his  purchase-money  :  it  need  not  be  recited  in  the  conveyance  that  the 
money  was  wanted  for  the  discharge  of  liabilities  :(?/)  it  is  sufficient  that 
the  purchaser  trusts  him  whom  the  testator  has  trusted  :(«;)  if  there  be 
any  misapplication,  the  remedy  of  the  creditor  or  legatee  is  not  against 
the  purchaser,  but  the  executor. (tt;)     It  is  impossible  for  the  purchaser 
to  ascertain  the  necessity  of  the  sale,  for  this  must  depend  upon  the 
state  of  the  accounts,  which  he  has  no  means  of  investigating  without 
the  powers  annexed  only  to  the  executorship. (x)   Even  *express 
L  ^^^]  notice  of  the  will,  and  of  the  bequests  contained  in  it,  works  the 
purchaser  no  prejudice;  for  "  every  person,"  said  Sir.  J.  Leach,  "who 
deals  with  an  executor  has  necessarily  implied  if  not  express  notice  of 
the  will :  but  all  dispositions  of  personal  property  are  by  law  subject  to 
a  prior  charge  for  payment  of  debts ;   and  as  a  purchaser  of  real  estate, 
devised  in  aid  for  payment  of  debts,  is  not  bound  to  inquire  into  the  fact 
whether  the  sale  is  made  necessary  by  the  existence  of  debts,  because  he 
has  no  adequate  means  to  prosecute  such  an  inquiry,  so  he  who  deals 
for  personal  assets  is,  for  the  same  reason,  absolved  from  all  inquiry  with 
respect  to  debts  :  he  has  a  right  to  assume  that  the  executor  sells  in  the 
necessary  course  of  his  administration  ;  and  it  is  upon  this  principle 
altogether  indiiferent  what  dispositions  may  be  made  in  the  will  with 
respect  to  the  personal  property  for  which  he  deals ;  for  whether  it  be 
specifically  given  or  be  part  of  the  residuary  estate,  it  is  equally  charged 
by  law  with  the  payment  of  debts."(j/) 

Thus  nothing  can  be  clearer  than  that  an  executor  may  go  to  market 

ble  V.  Bill,  2  Vern.  444 ;  Sanders  v.  Richards,  2  Coll.  568  ;  Miles  v.  Durnford,  2 
De  Gex,  Mac.  &  Gor.  641. 

(o)  Scott  V.  Tyler,  2  Dick.  T25,  per  Lord  Thurlow;  and  see  M'Leod  v.  Drum- 
mond,  14  Ves.  360  ;  S.  C.  IT  Yes.  167  ;  Ball  v.  Harris,  8  Sim.  485. 

(p)  Russell  V.  Plaice,  18  Bear.  21. 

(q)  M'Leod  V.  Drummond,  14  Ves.  360,  per  Sir  J.  Leach  ;  Nugent  v.  Gifford,  1 
Atk.  463. 

(r)  Nugent  v.  Gifford,  1  Atk.  463,  per  Lord  Hardwicke  ;  Mead  v.  Orrery,  3  Atk. 
238,  per  eundein;  M'Leod  v.  Drummond,  17  Ves.  163,  per  eundem. 

(s)  Mead  v.  Orrery,  3  Atk.  238,  240,  per  Lord  Hardwicke. 

(0  M'Leod  V.  Drummond,  17  Ves.  163,  169,  per  Lord  Eldon ;  and  see  Mead  v. 
Orrery,  3  Atk.  238,  240. 

(m)  Bonney  v.  Ridgard,  1  Cox,  148,  per  Lord  Kenyon.  {v)  Id. 

(w)  Humble  v.  Bill,  2  Vera.  445,  per  Cur. ;  Ewer  v.  Corbet,  2  P.  W.  149,  per 
Sir  J.  Jekyll ;  Watts  v.  Kancie,  Toth.  77  ;  Nurton  v.  Nurton,  id. 

{x)  Ewer  v.  Corbet,  2  P.  W.  149,  per  Sir  J.  Jekyll ;  Humble  v.  Bill,  2  Vern.  445, 
per  Cur. ;  Nugent  v.  Gifford,  1  Atk.  464,  per  Lord  Hardwicke  ;  Mead  v.  Orrery,  3 
Atk.  242,  ^jer  eundem ;  Clarke  v.  Panopticon,  3  Jur.  N.  S.  178. 

[y)  Keane  v.  Robarts,  4  Mad.  356. 


DUTIES  OF  TRUSTEES  FOR  SALE.         391 

witli  his  testator's  assets,  even  with  a  chattel  specifically  bequeathed,(2) 
and  the  purchaser  will  not  be  bound  to  see  to  the  application  of  his  pur- 
chase-money. («) 

But  fraud  and  collusion  will  vitiate  any  transaction,  and  turn  it  to  a 
mere  colour,(i)  and  therefore  if  fraud  be  proved,  either  express  or  im- 
plied, the  parties  cannot  protect  themselves  by  pleading  the  general 
rule.(c)    The  only  question  is.  What  will  amount  to  such  a  case  of  fraud? 

*1.  The  sale  cannot  stand  if  the  chattel  be  sold  at  a  nominal  ^-^5(3-1 
price,  or  a  fraudulent  undervalue. (r/) 

2.  The  executor  may  not  sell  or  pledge  the  assets  to  pay  or  secure  his 
own  debt,(e)  or  for  a  debt  wrongfully  contracted  by  him  as  executor,(/) 
for  prima  facie  this  is  a  diversion  of  the  assets  to  a  purpose  wholly 
foreign  to  the  administration,  and  therefore  a  devastavit.  <'  Though," 
observed  Sir  W.  Grant,  <'  it  may  be  dangerous  at  all  to  restrain  the  power 
of  jmrchasing  from  the  executor,  what  inconvenience  can  there  be  in 
holding  that  the  assets  known  to  be  such  should  not  be  applied  in  any 
case  for  the  executor's  deht,  unless  the  creditor  could  be  first  satisfied  of 
his  right  ?  It  may  be  essential  that  the  executor  should  have  the  power 
to  sell  the  assets,  but  it  is  not  essential  that  he  should  have  the  power  to 
pay  his  own  creditor ;  and  it  is  not  just  that  one  man's  property  should 
be  applied  to  the  payment  of  another  man's  debt."(^) 

But  if  the  executor  he  also  the  specific, {li)  or  residuary  lcgatee,[i)  then 
it  seems  to  be  established  upon  the  authority  of  several  cases  that  he 
may  dispose  of  the  chattel  in  payment  of  his  own  debt,  for  as  soon  as 
the  debts  and  legacies  of  the  testator  have  been  discharged,  the  property 
is  the  executor's;  and  how  is  a  purchaser  to  ascertain,  but  from  the 
mouth  of  the  executor,  whether  such  prior  liabilities  upon  the  estate 
have  been  fully  satisfied  ?    Unless  the  purchaser  were  indemnified,  under 

(2)  Watts  T.  Kancie,  Toth.  77,  161  ;  Nurton  v.  Nurton,  id.  ;  Ewer  v.  Corbet,  2 
P.  W.  148.  As  to  Humble  v.  Bill,  2  Vern.  444,  1  B.  P.  C.  71,  see  Ewer  v.  Corbet, 
ubi  supra;  Andrew  v.  Wrigley,  4  B.  C.  C.  137;  M'Leod  v.  Drummond,  17  Ves.  160. 

(a)  Bouney  v.  Ridgard,  1  Cox,  147,  per  Lord  Kenyon. 

(b)  Scott  V.  Tyler,  2  Dick.  725,  per  Lord  Thurlow. 

(c)  Watkins  v.  Cheek,  2  S.  &  S.  205,  per  Sir  J.  Leach;  M'Leod  v.  Drummond, 
17  Ves.  154,  per  Lord  Eldon ;  Hill  v.  Simpson,  7  Ves.  166,  per  Sir  W.  Grant; 
Taner  v.  Ivie,  2  Ves.  469,  per  Lord  Hardwicke  ;  Keane  v.  Robarts,  4  Mad.  357,  per 
Sir  J.  Leach  ;  Crane  v.  Drake,  2  Vern.  616  ;  Nugent  v.  Gifford,  1  Atk.  463,  per 
Lord  Hardwicke;  Mead  v.  Orrery,  3  Atk.  240,  per  eundejn;  Scott  v.  Tyler,  2  Dick. 
725,  per  Lord  Thurlow ;  Whale  v.  Booth,  4  T.  R.  625,  note  (a),  per  Lord  Mans- 
field ;  Elliot  V.  Merryman,  Barn.  81,  per  Sir  J.  Jekyll ;  Bonuey  v.  Ridgard,  1  Cox, 
147,  per  Lord  Kenyon  ;  &c.  n  -rrr 

(d)  Scott  V.  Tyler,  2  Dick.  725,  per  Lord  Thurlow;  Ewer  v.  Corbet,  2  P.  W. 
149,  per  Sir  J.  Jekyll;  and  see  Drohan  v.  Drohan,  1  B.  &  B.  185. 

(e)  Scott  V.  Tylor,  2  Dick.  712;  Hill  v.  Simpson,  7  Ves.  152;  Watkins  v.  Cheek, 
2  S.  &  S.  205,  per  Sir  J.  Leach  ;  Keane  v.  Robarts,  4  Mad.  35l,j^er  eundem;  Crane 
V.  Drake,  2  Vern.  616;  Anon,  case,  cited  Pr.  Ch.  434;  Andrew  v.  Wrigley,  4  B. 
C.  C.  137,  per  Lord  Alvanley ;  and  see  Eland  V.  Eland,  4  M.  &  Cr.  427  ;  Miles  v. 
Durnford,  2  De  Gex,  Mac.  &  Gor.  641. 

(/■)  Collinson  v.  Lister,  20  Beav.  356. 

(g)  Hill  V.  Simpson,  7  Ves.  169.  (A)  Taylor  v.  Hawkins,  8  Ves.  209. 

(i)  Nugent  v.  Gifford,  1  Atk.  463,  corrected  from  Reg.  Lib.  4  B.  C.  C.  136 ; 
Mead  v.  Orrery,  3  Atk.  235 ;  Whale  v.  Booth,  4  T.  R.  625,  note  (a).  See  the 
comments  of  Lord  Eldon,  M'Leod  v.  Drummond,  17  Ves.  163;  and  see  Bedford  v. 
Woodham,  4  Ves.  40,  note. 


392       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

these  circumstances,  tliere  could  be  no  sale  of  the  chattel  without  an 
investigation  on  the  part  of  the  purchaser  into  the  testator's  accounts,  a 
proceeding  attended  with  so  much  *labour  and  intricacy,  that  no 
[^^457]  gti-anger  has  ever  yet  been  called  upon  by  the  court  to  undertake 
the  burden  of  it. 

But  if  the  executor  be  specific  or  residuary  legatee  jointlt/ witJi  others, 
or  subject  to  certain  charges  under  the  ^c^U,  then  he  has  no  power  by 
himself  to  ofi"er  the  chattel  in  payment  of  his  own  debt.  For  in  what 
character  does  the  executor  sell  ?  It  must  be  either  as  executor  or  as 
legatee.  Not  as  executor,  for  then  he  cannot  pay  his  own  debt  with  the 
testator's  assets,  and  not  as  legatee,  for  he  is  not  exclusively  such,  but 
only  jointly  with  others,  or  subject  to  certain  charges ;  the  creditor  there- 
fore cannot  deal  for  the  chattel  without  the  concurrence  of  the  co-lega- 
tees, or  of  the  other  persons  jointly  entitled.(?)  And  the  mere  represen- 
tation by  the  executor  that  he  is  absolute  owner  under  the  will  is  no 
protection,  for  common  prudence  requires  that  the  purchaser  should 
look  at  the  will  himself  and  ascertain  the  fact;  and  if  he  neglect  this 
precaution,  and  assume  the  executor's  veracity,  he  must  incur  the  hazard 

of  the  executor's  falsehood. (m) 

And  again,  the  executor  in  his  character  of  specific  or  residuary  legatee 

cannot  pay  or  secure  the  debt  of  his  own  creditor  out  of  the  testator's 

assets,  if  such  creditor  have  express  notice  that  any  debt  of  the  testator 

still  remains  unsatisfied,  (vi) 

3.  If  the  executor  sell  or  mortgage  for  money  either  advanced  at  the 
time  or  to  be  advanced,  the  dealing  prima  facie  is  in  a  due  course  of 
administration. (o)  "  Where,"  observed  Sir  W.  Grant,  "a  party  having 
a  debt  due  to  him  by  the  executor  takes,  in  satisfaction  of  that  debt,  the 
assets  which  he  knows  belong  to  the  executor  only  in  that  character, 
undoubtedly  suspicion  of  fraud  must  always  arise;  but  where  a  man  is 
applied  to  for  a  loan  of  money  there  is  no  motive  of  fraud,  for  he  may 
keep  his  money  if  not  satisfied  with  the  security. (p)     However,  such  is 

the  jn-ima  facie  presumption  *only,  for  if  there  be  legal  evidence 
L  '*^°J  to  the  purchaser  or  mortgagee  that  the  immediate  or  future  ad- 
vance is  not  on  account  of  the  testator's  estate,  but  is  meant  to  be  applied 
to  the  private  purposes  of  the  executor,  the  court  must  regard  the  trans- 
action as  fraudulent,  and  will  not  allow  it  to  stand. (5') 

4.  A  purchaser  cannot  deal  with  an  executor  for  the  purchase  of  a 
chattel  specifically  bequeathed,  if  the  purchaser  have  notice,  (a  fact 
however  not  easily  to  be  proved,  and  not  lightly  to  be  presumed,)  that 
there  were  no  debts  of  the  testator,  or  that  they  have  since  been  dis- 
charged. M 

(l)  Bonney  v.  Ridgard,  1  Cox,  145  ;  Hill  v.  Simpson,  T  Ves.  152,  see  170. 

(m)  Hill  V.  Simpson,  7  Ves.  152,  see  170. 

(m)  See  Nugent  v.  Gififord,  1  Atk.  4G4 ;  Whale  v.  Booth,  4  T.  R.  625,  note  (a) ; 
M'Leod  V.  Drummond,  17  Ves.  163. 

(0)  M'Leod  V.  Drummond,  17  Ves.  155,  per  Lord  Eldon. 

Ip)  M'Leod  v.  Drummond,  14  Ves.  362. 

(q)  M'Leod  V.  Drummond,  14  Ves.  353;  S.  C.  reversed  17  Ves.  152;  Scott  v. 
Tyler,  2  Dick.  712,  compare  17  Ves.  166;  and  see  Keane  v.  Robarts,  4  Mad.  358. 

(r)  Ewer  v.  Corbet,  2  P.  W.  149,  per  Sir  J.  Jekyll. 


DUTIES  OF  TRUSTEES  FOR  SALE.         393 

5.  If  a  person  owe  money  to  a  testator's  estate,  and  be  apprised  ttat 
the  executor  means  to  misapply  it,  he  cannot  safely  hand  it  over.(.s) 

If  there  be  merely  a  presumjotion  from  length  of  time  that  all  debts 
are  paid,  it  may  be  argued,  indeed,  that  the  executor  is  a  trustee  for  the 
next  of  kin,  and  that  the  money  cannot  be  paid  safely  to  any  other  than 
the  next  of  kin  as  the  cestuis  que  trust.  However,  the  better  opinion 
probably  is,  that  in  the  absence  of  all  maJa  fides  the  executor's  receipt 
would  be  sufficient.  The  late  vice-chancellor  of  England  appeared,  on 
the  argument  of  a  case  in  which  the  author  was  counsel,  to  concur  in 
this  view,  for  he  asked,  "  If  the  executor  could  not  sign  the  receipt,  who 
could?"  In  the  case  alluded  to,  there  had  been  a  lapse  of  thirty-five 
years  from  the  testator's  death,  and  no  allegation  of  debts. (A  As  regards 
an  administrator  it  will  be  remembered,  that  all  necessary  protection  is 
thrown  around  the  estate  by  the  bond  taken  for  due  administration,  and 
and  also  by  the  form  of  proceeding  in  the  ecclesiastical  court ;  for  if  A. 
(to  whose  estate  the  money  is  owing)  die,  leaving  B.  his  next  of  kin, 
who  afterwards  dies,  leaving  C.  his  next  of  kin,  who  afterwards  dies, 
leaving  D.  his  next  of  kin,  in  order  to  take  *out  letters  of  admin-  r--j.^rQ-i 
istration  to  A.,  you  must  first  show  yourself  to  have  an  interest  «-  J 
by  taking  out  letters  to  B.  And  again,  to  take  out  letters  to  B.  you 
must  first,  for  the  same  reason,  take  out  letters  to  C. ;  so  that,  in  fact, 
letters  cannot  be  taken  out  to  A.  without  previously  taking  out  letters  to 
B.  and  C.  If,  in  such  a  case,  the  receipt  of  A.'s  administrator,  even 
after  the  lapse  of  twenty  years,  were  not  sufficient,  it  would  be  necessary 
in  a  suit  to  make  the  administrators  of  B.  and  C.  parties  as  cestuis  que 
trust,  a  thing  quite  unheard  of  in  practice. 

6.  An  agent  is  accountable  to  his  principal  only,  and  therefore  if  an 
executor  employ  a  banker  to  sell  out  part  of  the  testator's  stock  and  remit 
the  proceeds  to  him,  it  seems  the  banker,  though  he  has  reason  to  believe 
that  a  misapplication  is  intended,  is  bound  to  transfer  the  money  to  the 
executor,  and  does  not  thereby  render  himself  accountable.  A  contrary 
doctrine  would  carry  the  principle  of  constructive  trust  to  an  inconveni- 
ent and,  indeed,  to  an  impracticable  length.  (z<)  But  an  agent  who  de- 
rives a  personal  benefit  from  the  breach  of  trust  of  his  principal  will  be 
accountable. fy) 

Wherever,  as  in  the  several  cases  mentioned,  there  is  suspicion  of 
fraud,  the  transaction  may  be  impeached  by  creditors, (k-)  or  specific, (x) 

(s)  See  Watkins  v.  Cheek,  2  S.  &  S.  199;  Eland  v.  Elaud,  4  M.  &  Cr.  427; 
Stroughill  V.  Anstey,  1  De  Gex,  Mac.  &  Gor.  648. 

(t)  Gough  V.  Birch,  July  10,  1839,  MS. ;  see  Stroughill  v.  Anster,  1  De  G.  M,  & 
G.  654;  Ewer  v.  Corbet,  2  P.  W.  148  ;  Court  v.  Jeffery,  1  S.  &  S.  105 ;  Orrok  v. 
Binney,  Jac.  523 ;  Pierce  v.  Scott,  1  Y.  &  C.  257  ;  Forbes  v.  Peacock,  11  Sim.  152. 

(m)  Keane  v.  Robarts,  4  Mad.  332,  see  356,  359;  and  see  Davis  v.  Sparling,  1 
R.  &  M.  64:  S.  C.  Taml.  199;  Crisp  v.  Spranger,  Nels.  109  ;  Saville  v.  Tancred,  3 
Sw.  141,  note. 

{v)  Pannell  v.  Hurley,  2  Coll.  241 ;  Bodenham  v.  Hoskyns,  2  De  Gex,  Mac.  & 
Gor.  241. 

(«')  Crane  v.  Drake,  2  Vern.  616;  Anon,  case,  cited  Pr.  Ch.  434;  and  see 
Nugent  V.  Gifford,  1  Atk.  463 ;  Mead  v.  Orrery,  3  Atk.  238. 

(x)  Humble  v.  Bill,  2  Vern.  444;  Scott  v.  Tyler,  2  Dick.  712. 


394       LEWIX  ON  THE  LAW  OF  TRUSTS,  ETC. 

residuary,(y)  or  even  pecuniary  legatees. (z)  But  wliere  two  co-executors 
made  a  fraudulent  alienation,  and  they  having  become  bankrupt,  a  suit 
was  instituted  by  two  other  co-executors  who  had  not  interfered  for  four- 
teen years,  and  did  not  state  on  their  bill  any  interest  in  themselves,  and 
hardly  a  duty  they  had  to  perform  in  behalf  of  others  not  parties  on  the 
record,  the  application  was  refused. («)  And  in  no  case  will  the  court 
grant  relief  where  *the  right  of  unravelling  the  transaction  has 
L         -I  been  neglected  for  a  lapse  of  twenty  years. (6) 

SECTION  III. 

DISABILITY   OF   TRUSTEES   FOR   SALE   TO   BECOME   PURCHASERS   OF   THE 
TRUST   PROPERTY. 

We  now  come  to  the  subject  of  purchases  by  trustees  of  the  property 
vested  in  them  upon  trust. 

Under  this  head  it  will  be  proper  to  consider,  1,  The  extent  and  ope- 
ration of  the  rule,  that  a  trustee  shi<ll  not  purchase  the  trust  estate ;  2, 
The  species  of  relief  to  which  the  cestui  que  trust  will  be  entitled ;  3, 
The  time  within  which  the  cestui  q^ie  trust  must  apply  to  the  court. 

1.  The  general  rule  is,  that  a  trustee  for  sale,(^c^  (however  the  case 
may  stand  with  respect  to  mere  nominal  trustees,  or  trustees  who  have 
no  active  duties  to  perform,  as  trustees  to  preserve  contingent  remain- 
ders,)(fZ)  is  disabled  from  purchasing  the  trust  property,(e)  whether  it  be 
real  estate  or  a  chattel  personal,(/)  land,  or  a  ground  rent,(^)  in  reversion 
or  possession, (A)  whether  the  purchase  be  made  in  the  trustee's  own 
name  or  in  the  name  of  a  trustee  for  him,(i)  by  private  *contract 
L         -I  or  public  auction, (^)  from  himself  as  the  single  trustee,  or  with 

(y)  See  Burtiug  v.  Stonard,  2  P.  W.  150 ;  Mead  v.  Orrery,  3  Atk.  235,  see  238 ; 
M'Leod  V.  Drummond,  17  Ves.  161,  169. 

(z)  Hill  V.  Simpson,  7  Ves.  152  ;  and  see  M'Leod  v.  Drummond,  17  Ves.  169. 

(a)  M'Leod  v.  Drummond,  14  Ves.  353  ;  reversed  17  Ves.  152,  see  171. 

(b)  Andrew  t.  Wrigley,  4  B.  C.  C.  125  ;  Bonney  v.  Ridgard,  1  Cox,  145  ;  Mead 
T.  Orrery,  3  Atk.  235,  see  243. 

(c)  See  Parkes  v.  White,  11  Ves.  226;  Randall  v.  Errington,  10  Ves.  426; 
AylifFe  V.  Murray,  2  Atk.  59;  Davidson  y.  Gardner,  cited  Vend.  &  Purch.  890, 
nth  Ed. 

(d)  Sutton  V.  Jones,  15  Ves.  587;  Naylor  v.  Winch,  1  S.  &  S.  567. 

{e)  Fox  V.  Mackreth,  2  B.  C.  C.  400;  S.  C.  2  Cox,  320;  affirmed  in  D.  P.  4  B. 
P.  C.  258,  &c.  That  Fox  v.  Mackreth  was  decided  upon  this  ground,  see  Gibson 
T.  Jeyes,  6  Ves.  277  ;  Ex  parte  Lacey,  id.  627  ;  Ex  parte  James,  8  Ves.  353  ;  Coles 
V.  Trecothick,  9  Ves.  247  ;  Ex  parte  Bennett,  10  Ves.  394. 

(/)  Crowe  V.  Ballard,  2  Cox,  253;  S.  C.  3  B.  C.  C.  117  ;  Killick  v.  Flexney,  4 
B.  C.  C.  161;  Hall  v.  Hallet,  1  Cox,  134;  Whatton  v.  Toone,  5  Mad.  54;  6  Mad. 
153. 

(g)  Price  v.  Byrn,  cited  Campbell  v.  Walker,  5  Ves.  681. 

(A)  Re  Bloye's  Trust,  1  Mac.  &  Gor.  488,  see  492,  495. 

(i)  Campbell  v.  Walker,  5  Ves.  678;  S.  C.  13  Ves.  001;  Randall  v.  Errington, 
10  Ves.  423  ;  Crowe  v.  Ballard,  2  Cox,  253 ;  S.  C.  3  B.  C.  C.  117  ;  Hall  v.  Hallet, 
1  Cox,  134;  Watson  v.  Toone,  6  Mad.  153;  Baker  v.  Carter,  1  Y.  &  CoU.  250; 
Knight  V.  Majoribanks,  2  Mac.  &  Gor.  12. 

(k)  Campbell  v.  Walker,  Randall  v.  Errington,  ubi  supra;  Ex  parte  Bennett,  10 
Ves.  381,  see  393  ;  Ex  parte  James,  8  Ves.  337,  see  349;  Whelpdale  v.  Cookson,  1 
Ves.  9 ;  S.  C.  stated  from  R.  L. ;  Campbell  v.  Walker,  5  Ves. '  682  ;  Ex  parte 
Hughes,  6  Ves.  617;  Ex  parte  Lacey,  id.  625;  Lister  v.  Lister,  id.  631 ;  Whichcote 


DUTIES  OF  TRUSTEES  FUR  SALE.         395 

the  sanction  of  his  co-trustees  ;(?)  for  he  who  undertakes  to  act  for  ano- 
ther in  any  matter  cannot,  in  the  same  matter,  act  for  himself. (m)  The 
situation  of  the  trustee  gives  him  an  opportunity  of  knowing  the  value 
of  the  property,  and  as  he  acquires  that  knowledge  at  the  expense  of  the 
cestui  que  trust,  he  is  bound  to  apply  it  for  the  cestui' s  que  trust  benefit.(?i) 
Besides,  if  the  trustee  appeared  at  the  auction  professedly  as  a  bidder, 
that  would  operate  as  a  discouragement  to  others,  who,  seeing  the  vendor 
ready  to  purchase  at  or  above  the  real  value,  would  feel  a  reluctance  to 
enter  into  the  competition,  and  so  the  sale  would  be  chilled. (0) 

Lord  Rosslyn  is  said  to  have  considered  that  to  invalidate  a  purchase 
by  a  trustee  it  was  necessary  to  show  he  had  gained  an  actual  advan- 
tage •,(^p'j  but  the  doctrine,  (if  any  such  was  ever  held  by  his  lordship,)(2) 
has  since  been  expressly  and  unequivocally  denied. (r)  The  rule  is  now 
universal,  that,  however  fair  the  transaction,  the  cestui  que  trust  is  at 
liberty  to  set  aside  the  sale  and  take  back  the  property. (s)  If  a  trustee 
were  permitted  to  buy  in  an  honest  case,  he  might  buy  *in  a  case  r:).  i  ^9-1 
having  that  appearance,  hut  which,  from  the  infirmity  of  human  L  "'-' 
testimony,  might  he  grossly  other ivise.U^  Thus,  a  trustee  for  the  sale  of 
an  estate  may,  by  the  knowledge  acquired  by  him  in  that  character, 
have  discovered  a  valuable  coal-mine  under  it,  and,  locking  that  up  in 
his  own  breast,  might  enter  into  a  contract  for  the  purchase  to  himself. 
In  such  a  case,  if  the  trustee  chose  to  deny  it,  how  could  the  court  esta- 
blish the  fact  against  the  denial  ?  The  probability  is,  that  a  trustee  who 
had  once  conceived  such  a  purpose  would  never  disclose  it,  and  the  cestui 
que  trust  would  be  effectually  defrauded. (?A 

As  a  trustee  cannot  buy  on  his  own  account,  it  follows  that  he  cannot 
be  permitted  to  buy  as  agent  for  a  third  person  :  the  court  can  with  as 
little  effect  examine  how  far  the  trustee  has  made  an  undue  use  of  infor- 
mation acquired  by  him  in  the  course  of  his  duty  in  the  one  case  as  in 
the  other,  ^v) 

V.  Lawrence,  3  Yes.  740 ;  Attorney-General  v.  Lord  Dudley,  Coop.  146 ;  Downes 
V.  Grazebrook,  3  Mer.  200. 

[1]  Whichcote  v.  Lawrence,  3  Yes.  740 ;  Hall  v.  Noyes,  cited  id.  748 ;  and  see 
Morse  v.  Royal,  12  Yes.  374. 

[m)  Whichcote  v.  Lawrence,  3  Yes.  750,  per  Lord  Rosslyn  ;  Ex  parte  Lacey,  6 
Yes.  626,  per  Lord  Eldon;  Re  Bloye's  Trust,  1  Mac.  &  Gor.  495. 

(w)  See  Ex  parte  James,  8  Yes.  348.  (0)  See  Ex  parte  Lacey,  6  Yes.  629. 

[p)  See  Whichcote  v.  Lawrence,  3  Yes.  750. 

\q)  See  Ex  parte  Lacey,  6  Yes.  626  ;  Lister  v.  Lister,  id.  632. 

(r)  Ex  parte  Bennett,  10  Yes.  385;  Ex  parte  Lacey,  6  Yes.  627;  Attorney- 
General  V.  Lord  Dudley,  Coop.  148;  Ex  parte  James,  8  Yes.  348;  Mulvany  v. 
Dillon,  1  B.  &  B.  409,  see  418. 

(s)  Ex  parte  Lacey,  6  Yes.  625,  see  627;  Owen  t.  Foulkes,  cited  id.  630, 
note  [b)\  Ex  parte  Bennett,  10  Yes.  393,  per  Lord  Eldon;  Randall  v.  Errington, 
10  Yes.  423,  see  428  ;  Campbell  v.  Walker,  5  Yes.  678,  see  680 ;  Ex  parte  James, 
8  Yes.  347,  348,  per  Lord  Eldon;  Lister  v.  Lister,  6  Yes.  631  ;  Gibson  v.  Jeyes,  G 
Yes.  277,  per  Lord  Eldon;   but  see  Kilbee  v.  Sneyd,  2  Moll.  186. 

{t)   Ex  parte  Bennett,  10  Yes.  385,  per  Lord  Eldon. 

(m)  Ex  parte  Lacey,  6  Yes.  627,  per  Lord  Eldon;  and  see  Ex  parte  Bennett,  10 
Yes.  385,  394,  400;  Ex  parte  James,  8  Yes.  348,  349;  Parkes  v.  White,  11  Yes. 
226 ;  Campbell  v.  Walker,  5  Yes.  681 ;  Lister  v.  Lister,  6  Yes.  632;  Ex  parte  Bad- 
cock,  1  Mont.  &  Mac.  239. 

[v)  Ex  parte  Bennett,  10  Yes.  381,  see  400;  Coles  v.  Trecothick,  9  Yes.  243,  per 
Lord  Eldon ;   and  see  Gregory  v.  Gregory,  Coop.  204. 


396  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

And  the  rule  against  purchasing  the  trust  property  applies  to  an  agent 
employed  by  the  trustee  for  the  purposes  of  the  sale,  as  strongly  as  to 
the  trustee  himself. (?c) 

The  lease  of  an  estate  is  in  fact  the  sale  of  a  partial  interest  in  it,  and 
therefore  trustees  for  sale  cannot  grant  a  demise  to  one  of  themselves, 
but  the  lessee,  while  he  shall  be  held  to  his  bargain  if  disadvantageous 
to  him,  shall  be  made  to  account  for  the  profits  if  it  be  in  his  favour. (x) 

There  can  be  no  objection  to  a  purchase  by  a  person  named  as  trustee, 
but  who  has  disclaimed  without  having  acted  in  the  trust,(y)  or  by  a 
tenant  for  life  whose  consent  to  the  sale  is  required  by  the  terms  of  the 
power,  (-i) 

r*4fi^l  *^iit  when  it  is  said  a  trustee  for  sale  may  not  purchase  the 
L  J  trust  property,  the  meaning  must  be  understood  to  be  that  the 
trustee  may  not  jmrchase  from  himself;  for  there  is  no  rule  that  a  trus- 
tee may  not  purchase  from  his  cestui  que  tr2isf.(^a^  However,  a  purchase 
by  the  trustee  from  his  cestui  que  trust  is  at  all  times  a  transaction  of 
great  nicety,  and  one  which  the  courts  will  watch  with  the  utmost  dili- 
gence :(h\  the  exception  runs,  it  is  said,  so  near  the  verge  of  the  rule, 
that  it  might  as  well  be  included  within  it.(c) 

Before  any  dealing  with  the  cestui  que  trust,  the  relation  between  the 
trustee  and  cestui  que  trust,  must  be  actually  or  v irtuaUi/  disso\\ed.  The 
trustee  may,  if  he  pleases,  retire  from  the  office,  and  qualify  himself  for 
becoming  a  purchaser  by  divesting  himself  of  that  character,^;:?)  or,  if  he 
retain  the  situation,  the  parties  must  be  put  so  much  at  arm's  length, 
that  they  agree  to  stand  in  the  adverse  situations  of  vendor  and  purcha- 
ser,(e)  the  cestui  que  trust  distinctly  and  fully  understanding  that  he  is 
selling  to  the  trustee,  and  consenting  to  waive  all  objections  upon  that 
ground^  (/)  and  the  trustee  fairly  and  honestly  disclosing  all  the  necessary 
particulars  of  the  estate,  and  not  attempting  a  furtive  advantage  to  him- 
self by  means  of  any  private  information  :(^)  the  trustee  will  not  be 

(w)  Whitcomb  v.  Mincbin,  5  Mad.  91 ;  In  re  Bloje's  Trust,  1  Mac.  &  Gor.  488, 
see  495. 

(x)  Ex  parte  Hughes,  6  Yes.  61T;  Attorney-General  v.  Earl  of  Clarendon,  17 
Ves.  491,  see  500. 

(y)  Stacey  v.  Elph,  1  M.  &  K.  195 ;  and  see  Chambers  v.  "Waters,  3  Sim.  42. 

(z)  Howard  v.  Ducane,  1  Turn.  &  R.  81. 

[a)  Ex  parte  Lacey,  6  Ves.  626,  per  Lord  Eldon;  Coles  v.  Trecothick,  9  Ves. 
244,  24:6; per  eundem ;  Gibson  v.  Jeyes,  6  Ves.  211, per  eundem;  Downes  v.  Graze- 
brook,  3  Mer.  2(i9,,per  eundem;  Randall  v.  Errington,  10  Ves.  426,  per  Sir  W. 
Grant ;  Whichcote  v.  Lawrence,  3  Ves.  ToO,  per  Lord  Rosselyn  ;  Sanderson  v. 
Walker,  13  Ves.  601,  per  Lord  Eldon;  AylifFe  v.  Murray,  2  Atk.  59,  per  Lord 
Hardwicke;  Kilbee  v.  Sneyd,  2  Moll.  214,  per  Sir  A.  Hart. 

{b)  Coles  T.  Trecothick,  9  Ves.  244,  per  Lord  Eldon ;  Ex  parte  Lacey,  6  Ves. 
626,  jaer  eundem;  Downes  v.  Grazebrook,  3  Mer.  2Qd,  per  eundem. 

(c)  Morse  v.  Royal,  12  Ves.  372,  per  Lord  Erskine. 

(d)  Downes  v.  Grazebrook,  3  Mer.  208,  per  Lord  Eldon. 

\e)  Gibson  v.  Jeyes,  6  Ves.  277,  per  Lord  Eldon  ;  and  see  Ex  parte  Lacey,  6 
Ves.  626,  627;  Ex  parte  Bennett,  10  Ves.  394;  Morse  v.  Royal,  12  Ves.  373: 
Sanderson  y.  Walker,  13  Ves.  601. 

(/)   See  Randall  v.  Errington,  10  Ves.  427. 

[g)  Coles  v.  Trecothick,  9  Ves.  247,  per  Lord  Eldon  ;  Morse  v.  Royal,  12  Ves. 
373,  377,  per  Lord  Erskine;  Gibson  v.  Jeyes,  6  Ves.  277,  per  Lord  Eldon;  Randall 
V.  Errington,  10  Ves.  427,  per  Sir  W.  Grant. 


DUTIES    OF    TRUSTEES    FOR    SALE.  397 

allowed  to  go  on  acquainting  himself  with  the  nature  of  the  pro-  i-^;^p_, -, 
perty  *up  to  the  moment  of  sale,  and  then,  casting  aside  his  L  J 
character  of  trustee,  turn  his  experience  to  his  own  account.(/i) 

In  what  cases  a  trustee  will  be  at  liberty  to  become  a  purchaser  may 
be  best  illustrated  by  a  few  instances. 

Where  the  cestui  que  trust  took  the  whole  management  of  the  sale 
himself,  chose,  or  at  least  approved  the  auctioneer,  made  surveys,  settled 
the  plan  of  sale,  fixed  the  price,  and  so  had  a  perfect  knowledge  of  the 
value  of  the  property,  and  then  by  his  agent,  but  with  his  own  personal 
consent,  agreed  to  sell  a  lot  which  had  been  bought  in  to  one  of  the  trus- 
tees acting  as  agent  for  another,  Lord  Eldon  said,  that  if  in  any  instance 
the  rule  was  to  be  relaxed  by  consent  of  the  parties,  this  was  the  case, 
and  decreed  the  agreement  to  be  specifically  performed. (i) 

Again,  a  cestui  que  trust  had  urged  the  purchase  upon  the  trustee, 
who  at  first  expressed  an  unwillingness,  but  afterwards  agreed  to  the 
terms;  and  the  sale  was  supported. (A-) 

So,  where  the  trustee  had  endeavoured  in  vain  to  dispose  of  the  estate, 
and  then  purchased  himself  of  the  cestui  que  trust  at  a  fair  and  adequate 
price,  and  there  was  no  imputation  of  fraud  or  concealment,  Lord . 
Northington  said,  "  He  did  not  like  the  circumstance  of  a  trustee  deal- 
ing with  his  cestui  que  trust,  but  upon  the  whole,  he  did  not  see  any 
principle  upon  which  he  could  set  the  transaction  aside. "(Z) 

It  has  been  pronounced  too  dangerous  to  allow  the  cesfui's  que  trust 
solicitor,  without  a  special  authority,  to  bind  his  employer  by  such  a 
contract  with  the  trustee. (m) 

Where  the  cestuis  que  trust  are  creditors,  the  trustee  cannot  purchase 
with  the  sanction  of  the  major  part  of  them,  but  the  liberty  must  in 
strictness  be  given  by  the  unanimous  voice  of  the  whole  body,(?i)  though 
the  court  is  in  the  habit  of  *sanetioning  purchases  of  a  bank-  p.,. ,-._-. 
rupt's  estate  by  assignees,  provided  the  assent  of  a  general  meet-  L  '  -' 
ing  of  creditors  be  obtained. (o) 

The  court  has  no  jurisdiction  to  authorize  a  trustee  to  bid  where  the 
cestuis  que  trust  are  sui  juris,  for  that  is  a  question  the  cestuis  que  trust 
are  entitled  to  decide  for  themselves. (j;) 

If  the  cestuis  que  trust  be  under  disability,  as  infants,  the  trustee,  as  he 
cannot  be  i-eleased  from  the  liabilities  of  his  situation,  cannot  by  any 
act  in  pais  become  the  purchaser  of  the  estate  ;{(])  but,  if  it  be  absolutely 
necessary  that  the  property  should  be  sold,  and  the  trustee  is  ready  to 
give  more  than  any  one  else,  he  may  file  a  bill  in  Chancery,  and  apply 
by  motion  to  be  allowed  to  purchase,  and  the  court  will  then  examine 

{h)  See  Ex  parte  James,  8  Ves,  352.  (?)   Coles  v.  Trecothick,  9  Vcs.  234. 

(k)   Morse  v.  Royal,  12  Ves.  355.  (/)  Clarke  v.  Swaile,  2  Ed.  134. 

(in)  Downes  v.  Grazebrook,  3  Mer.  209,  per  Lord  Eldon. 

(m)  See  Sir  G.  Colebrook's  case,  cited  Ex  parte  Plughes,  6  Ves.  622;  Ex  parte 
Lacey,  id.  628 ;  the  cases  cited  id.  630,  note  (6).  Whelpdale  v.  Cookson,  cited 
Campbell  v.  Walker,  5  Ves.  682,  must  be  considered  as  shaken.  Sugd.  V.  k  P. 
894,  11th  Edn. 

(0)   Anon,  case,  2  Russ.  350 ;  Ex  parte  Bage,  4  Mad.  459. 

[p)   See  Ex  parte  James,  8  Ves.  352. 

\q)  Campbell  v.  Walker,  5  Ves.  678  ;  S.  C.  13  Ves.  601. 

March,  1857.— 26 


39S       LEWIN  ON  THE  LAW  OF  TKUSTS,  ETC. 

into  the  circumstances,  ask  who  had  the  conduct  of  the  transaction, 
whether  there  is  reason  to  suppose  the  premises  could  be  sold  better, 
and  upon  the  result  of  that  inquiry  will  let  another  person  prepare  the 
particular  sale,  and  allow  the  trustee  to  bid.(r) 

The  principles  laid  down  with  reference  to  trustees  for  sale  are  of 
course  applicable  to  all  who,  though  differing  in  name,  are  invested  with 
the  like  fiduciary  character,  as  executors  and  administrators,(s)  an  exe- 
cutor in  his  own  wrong,(^)  assignees  of  bankrupts,(«)  a  receiver,(z;)  &c. ; 
but  a  mortgagee  may  purchase  from  his  mortgagor,(w)  and  a  creditor 
taking  out  execution  is  not  precluded  from  becoming  the  purchaser  of 
the  property  upon  a  sale  by  the  sheriff.(a-) 

2.  Next  as  to  the  terms  upon  which  the  sale  will  be  set  aside. 

*The  cestui  que  trust,  if  he  choose  it,  may  have  the  specific 
[  '*""J  estate  reconveyed  to  him  by  the  trustee, (^)  or,  where  the  trustee 
has  sold  it  with  notice,  by  the  party  who  purchased, (,^)  the  cestui  que  trust 
on  the  one  hand  repaying  the  price  at  which  the  trustee  bought  witb 
interest  at  4  per  cent., (a)  and  the  trustee  or  purchaser  on  the  other 
accounting  for  the  profits  of  the  estate,(i)  but  not  with  interest,(c)  and, 
if  he  was  in  actual  possession,  submitting  to  be  charged  with  an  occupa- 
tion rent.(cZ^ 

The  trustee  will  have  all  just  allowances  made  to  him  for  improve- 
ments and  repairs  that  are  substantial  and  lasting,(e)  or  such  as  have  a 
tendency  to  bring  the  estate  to  a  better  sale,(/)  as  in  one  case  for  a  man- 
sion house  erected,  plantations  of  shrubs,  kc.;{ri)  and  in  estimating  the 
improvements,  the  buildings  pulled  down,  if  they  were  incapable  of 

[r)  Campbell  v.  Walker,  5  Ves.  68],  682,  per  Lord  Alvanley. 
(«)  Hall  V.  Hallet,   1  Cox,  134;  Killick  v.  Flexney,  4  B.  C.   C.  161  ;  Watson  v. 
Toone,  6  Mad.  153 ;  Kilbee  v.  Sneyd,  2  Moll.  186;  Baker  v.  Carter,  1  Y.  &  C.  250 ; 
aad  see  Naylor  v.  Winch,  1  S.  &  S.  566. 
(i)  Mulvany  v.  Dillon,  1  B.  &  B.  408. 

(«)  Ex  parte  Hughes,  6  Ves.  617;  Ex  parte  Lacey,  id.  625,  and  the  cases  cited, 
id.  630,  note  (6);  Ex  parte  Bennett,  10  Ves.  395,  per  Lord  Eldon ;  Ex  parte 
Reynolds,  5  Ves.  707  ;  Ex  parte  James,  8  Ves.  346,  per  Lord  Eldon  ;  Ex  parte 
Morgan,  12  Ves.  6;  Ex  parte  Bage,  4  Mad.  459;  Ex  parte  Badcock,  1  Mont.  & 
Mac.  231. 

{v)  Alven  v.  Bond,  1  Fl.  &  Kell.  196 ;  White  v.  Tommy,  referred  to  ib.  224. 
{to)  Knight  V.  Majoribanks,  11  Beav.  322  ;  2  Mac.  &  Gor.  10. 
(x)  Stratford  v.  Twynam,  Jac.  418. 

{y)  See  Ex  parte  James,  8  Ves.  351  ;  Ex  parte  Bennett,  10  Ves.  400  ;  Lord 
Hardwicke  T.  Vernon,  4  Ves.  411;  York  Buildings'  Company  v.  Mackenzie,  8  B. 
P.  C.  42. 

(2)  Attorney-General  v.  Lord  Dudley,  Coop.  146  ;  Dunbar  v.  Tredennick,  2  B. 
&  B.  304. 

{a)  Watson  v.  Toone,  6  Mad.  153  ;  Ex  parte  James,  8  Ves.  351,  per  Lord  Eldon  ; 
Whelpdale  v.  Cookson,  stated  from  R.  L.  Campbell  v.  Walker,  5  Ves.  682  ;  Hall  v. 
Hallet,  1  Cox,  134,  see  139  ;  York  Buildings'  Company  v.  Mackenzie,  ubi  supra,  &c. 
(6)  Ex  parte  James,  8  Ves.  351,  per  Lord  Eldon;  Ex  parte  Lacey,  6  Ves.  630, 
per  eundem;  Watson  v.  Toone,  6  Mad.  153;  Whelpdale  v.  Cookson,  York  Build- 
ings' Company  v.  Mackenzie,  ubi  supra. 

(c)  Macartney  v.  Blackwood,  1  Ridg.  Knapp  &  Sch.  602. 
M)  Ex  parte  James,  8  Ves.  351,  per  Lord  Eldon. 

(e)  Ex  parte  Hughes,  6  Ves.  624,  625;  Ex  parte  James,  8  Ves.  352  :  Campbell  v. 
Walker,  5  Ves.  682. 

(/)  Ex  parte  Bennett,  10  Ves.  400. 

(<?)  York  Buildings'  Company  v.  Mackenzie,  ubi  supra. 


DUTIES  OF  TRUSTEES  FOR  SALE.         399 

repair,  will  be  valued  as  old  materials,  but  otherwise  they  will  be  valued  as 
buildings  standing  :(A)  should  the  property  have  been  deterioratedhy  the 
acts  of  the  trustee,  his  purchase-money  will  suffer  a  proportionate  reduc- 
tion, (i) 

But,  it  seems,  where  the  contract  was  vitiated  by  the  presence  of 
actual  fraud,  allowance  will  be  made  to  the  trustee  for  necessary  repairs,(Z;) 
but  not  for  improvements.  "  If,"  said  Lord  Fitsgibbon,  "  the  person 
really  entitled  to  the  estate  will  encourage  the  possessor  of  it  to  expend 
his  money  in  improvements,  *or  if  he  will  look  on  and  suffer  r^  .py-i 
such  an  expenditure  without  apprising  the  party  of  his  intention  L  -1 
to  dispute  his  title,  and  will  afterwards  endeavour  to  avail  himself  of  such 
fraud,  the  jurisdiction  of  a  Court  of  Equity  will  clearly  attach  upon  the 
case.  But  does  it  follow  from  thence,  that,  if  a  man  has  acquired  an  estate 
by  rank  and  abominable  fraud,  and  shall  afterwards  expend  his  money  in 
improving  the  estate,  that  therefore  he  shall  retain  it  in  his  hands 
against  the  lawful  proprietor  ?  If  such  a  rule  should  prevail,  it  would 
justify  a  proposition  I  once  heard  at  the  bar,  that  the  common  equity  of 
the  country  was  to  improve  the  right  oioner  out  of  the  possession  of  his 
estate."{l) 

A  trustee,  the  sale  having  taken  place  during  the  pendency  of  a  suit, 
had  paid  part  of  his  purchase-money  into  court,  which  had  been  invested 
in  the  funds.  On  the  purchase  being  set  aside,  the  trustee  claimed  the 
benefit  of  the  rise  of  the  stock,  but  it  was  held  he  was  only  entitled  to 
his  purchase-money  with  interest,  for  had  there  occurred  a  fall  of  the 
stock,  he  could  not  have  been  compelled  to  submit  to  the  loss.(w) 

If  the  trustee  is  to  be  discharged  from  the  situation  of  purchaser,  he 
is  to  be  discharged  at  once,  and  the  court  will  order  an  immediate  con- 
veyance upon  immediate  payment  of  the  money. (ji) 

The  re-conveyance  of  the  estate  will  be  without  prejudice  to  the  titles 
and  interests  of  lessees  and  others  who  have  contracted  with  the  trustee 
hona  fide  before  the  pendency  of  the  suit.(o) 

But  the  bill  of  the  cestui  que  trust ,  particularly  where  the  assignee  of 
a  bankrupt  has  become  the  purchaser,  may  pray,  not  a  re-conveyance  of 
the  specific  estate,  but  a  re-sale  of  the  property  under  the  direction  of 
the  court.  The  terms  of  the  re-sale  have  not  always  been  uniform.  In 
Whelpdale  v.  Cookson(79)  Lord  Hardwicke  said  the  majority  of  the  cre- 
ditors *should  elect  whether  the  purchase  should  stand ;  so  that  r:):  ipo-i 
should  they  elect  to  re-sell,  and  the  estate  should  be  sold  at  a  still  L  J 
lower  price,  the  creditors  would  suffer.  The  doctrine  of  Lord  Thurlow 
appears  to  have  been,  that  the  property  should  be  put  up  at  the  price  at 
which  the  trustee  purchased,  and  if  any  advance  was  made,  the  sale 
should  take  effect,  but  if  no  bidding,  the  trustee  should  be  held  to  his 

{h)  Robinson  v.  Ridley,  6  Mad.  2.  (?)  Ex  parte  Bennett,  10  Ves.  401. 

{k)  Baugh  V.  Price,  1  Wils.  320. 

{I)  Kenney  v.  Browne,  3  Ridg.  518;  but  see  Oliver  v.  Court,  8  Price,  172. 

{m)  Ex  parte  James,  8  Ves.  337,  see  351. 

(m)  See  Ex  parte  Bennett,  10  Ves.  400,  401. 

(0)  York  Buildings'  Company  v.  Mackenzie,  8  B.  P.  C.  42  ;  see  the  decree. 

{p)  Cited  Campbell  v.  Walker,  5  Ves.  682. 


400       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

bargain. (5)  Lord  Alvanley  followed  the  authority  of  Lord  Hardwickej 
for  in  the  case  of  infant  cestuis  que  trust,  he  directed  an  inquiry  by  the 
master,  whether  it  was  for  the  benefit  of  the  infants  that  the  premises 
should  be  re-sold,  and,  if  for  their  benefit,  that  the  sale  should  be 
made.(r)  "  To  this  principle,"  said  Lord  Eldon,  "  the  objection  is,  that 
a  great  temptation  to  purchase  is  ofi"ered  to  trustees,  the  question  whe- 
ther the  re-sale  would  be  advantageous  to  the  cestui  que  trust  being  of 
necessity  determined  at  the  hazard  of  a  wrong  determination. "(s)  Lord 
Eldon  therefore  conceived  it  best  to  adopt  the  rule  of  Lord  Thurlow,  and 
so  he  decreed  in  Ex  parte  Hughes(f)  and  Ex  parte  Lacey.(7«)  Sir  W. 
Grant,  in  a  subsequent  case,(t;)  said  he  was  not  aware  that  Lord  Eldon 
had  laid  down  any  general  rule  as  to  the  terms ;  but  a  few  days  after, 
having  consulted  the  lord  chancellor  upon  the  subject,  and  discovering 
his  mistake,  he  framed  his  decree  in  conformity  with  the  lord  chancel- 
lor's decisions.  The  same  principle  has  since  been  followed  in  numerous 
other  cases,(?«)  and  the  practice  may  be  considered  as  settled. 

Should  the  trustee  have  repaired  or  improved  the  estate,  the  expense 
of  the  repairs  and  improvements  would  be  added  to  the  purchase-money, 
and  the  estate  be  put  up  at  the  accumulated  sum. (re) 

Where  the  trustee  has  purchased  in  one  lot,  the  cestuis  que  trust  can- 

not  insist  on  a  re-sale  in  difi"erent  lots.     If  desirous  *of  re-sel- 

L         -1  ling  the  property  in  that  mode,  they  must  pay  the  trustee  his 

principal  and  interest,  and  then,  as  the  absolute  owners,  they  may  sell 

as  they  please. (?/) 

In  the  application  of  Lord  Hardwicke's  rule  it  was  a  question  con- 
stantly occurring,  whether  the  body  of  creditors  at  large  could  be  bound 
by  the  reisolution  of  the  majority  to  insist  upon  a  re-sale;  but  by  the 
practice  of  Lord  Eldon,  the  difficulty  on  that  head  is  avoided, (.t)  for,  as 
the  creditors  cannot  by  possibility  sustain  an  injury,  it  is  competent  to 
any  individual  creditor  to  try  the  experiment. (a) 

If,  before  the  cestui  que  trust  files  his  bill  for  relief,  the  trustee  has 
passed  the  estate  into  the  hands  of  a  purchaser,  and  the  purchaser  had 
notice  of  the  equity,  the  same  remedies  may  be  prosecuted  against  the 
purchaser  as  against  the  trustee  ;(i)  but  if  the  sale  was  without  notice, 
the  cestui  que  trust  may  then  compel  the  trustee  to  account  for  the  dif- 
ference of  priee,(c)  or  for  the  difference  between  the  sum  the  trustee  paid 

(q)  See  Lister  v.  Lister,  6  Yes.  633  ;  Ex  parte  James,  8  Ves.  351. 

(r)  Campbell  v.  Wallier,  5  Ves.  678,  see  682. 

(s)  S.  C.  13  Ves.  603.  (/)  6  Ves.  617. 

(m)  Id.  625  ;  aud  see  Ex  parte  Reynolds,  5  Ves.  707. 

(v)  Lister  v.  Lister,  6  Ves.  633. 

(w)  Ex  parte  James,  8  Ves.  337;  Ex  parte  Bennett,  10  Ves.  381 ;  Robinson  v. 
Ridley,  6  Mad.  2. 

(x)  Ex  parte  Bennett,  10  Ves,  400 ;  Ex  parte  Hughes,  6  Ves.  625  ;  Robinson  v. 
Ridley,  6  Mad.  2. 

(y)  See  Ex  parte  James,  8  Ves.  351,  352.  (z)  Ex  parte  Hughes,  6  Ves.  624. 

(a)  Ex  parte  James,  8  Ves.  353;  and  see  Ex  parte  Lacey,  6  Ves.  628. 

(6)  Attorney-General  v.  Lord  Dudley,  Coop.  146 ;  Dunbar  v.  Tredennick,  2  B. 
&  B.  304. 

(c)  Fox  y.  Mackreth,  2  B.  C.  C.  400 ;  S.  C.  2  Cox,  320  ;  Hall  v.  Hallet,  1  Cox, 
134;  Whichcote  v.  Lawrence,  3  Ves.  740  ;  Ex  parte  Reynolds,  5  Ves.  707  ;  Randall 
T.  Errington,  10  Ves.  423. 


DUTIES  OF  TRUSTEES  FOR  SALE.         401 

and  the  real  value  of  the  estate  at  the  time  of  the  purchase;(cZ)  with 
interest  at  four  per  cent.(e) 

An  administrator  had  become  the  purchaser  of  some  shares  in  Scotch 
mines,  part  of  the  assets,  and  afterwards  sold  them  to  a  stranger  at  a 
considerable  advance  of  price,  and  Lord  Thurlow  decreed  the  trustee  to 
account  for  every  advantage  he  had  made,  but  said  he  could  not  go  the 
length  of  ordering  the  defendant  to  replace  the  shares.  He  conceived 
the  plaintiflF,  one  of  the  next  of  kin,  had  no  such  election  of  choosing 
between  the  specific  thing  and  the  advantage  made  of  it.(/) 

The  costs  of  the  suit  will,  as  a  general  rule,  follow  the  decree — that 
is,  if  the  trustee  be  compelled  to  give  up  his  purchase,  unless  his  con- 
duct was  perfectly  honourable  and  the  *sale  is  set  aside  on  the  r^A^o-, 
mere  dry  rule  of  equity,(f/^  he  must  pay  the  expenses  he  had  L  J 
himself  occasioned  ;(/i)  and  if  the  charge  be  unfounded,  the  costs  must 
be  paid  by  the  plaintiff.  But  if  there  be  great  delay  on  the  part  of  the 
cestui  que  trust,  the  costs  will  be  refused  him,  though  he  succeed  in  the 
suit;(i)  and,  on  the  other  hand,  if  the  bill  be  dismissed,  not  because  the 
transaction  was  not  originally  impeachable,  but  merely  on  account  of 
the  great  interval  of  time,  the  court  may  refuse  to  order  the  costs  of  the 
defendant.(j/*) 

3.  If  the  cestui  que  trust  desire  to  set  aside  the  purchase,  he  must 
make  his  application  to  the  court  in  treasonable  time,  or  he  will  not  be 
entitled  to  relief,  (/c)  A  long  acquiescence  under  a  sale  to  a  trustee  is 
treated  as  evidence  that  the  relation  between  the  trustee  and  cestui  que 
trust  had  been  previously  abandoned,  and  that  in  all  other  respects  the 
purchase  was  fairly  conducted.  (?) 

A  sale  cannot,  in  general,  be  set  aside  after  a  lapse  of  twenty  years ;(m) 
but  in  these  cases  the  court  does  not  confine  itself  to  that  period  by 
analogy  to  the  Statute  of  Limitations,  for  relief  has  been  refused  after 
an  acquiescence  of  eighteen  years,^w)  and  seventeen  years  ;(o)  and  it  is 
presumed  even  a  shorter  period  would  be  a  bar  to  the  remedy,  where  the 
cestui  que  trust  could  offer  no  excuse  for  his  laches.{jp)     However,  the 

{d)  See  Lord  Hardwicke  v.  Vernon,  4  Yes.  411, 

(e)  Hall  V.  Hallet,  1  Cox,  134,  see  139.  (/)  S.  C. 

{g)  Baker  v.  Carter,  1  Y.  &  C.  250. 

(h)  Whichcote  v.  Lawrence,  3  Ves.  752;  Hall  v.  Hallet,  1  Cox,  141  ;  Sanderson 
V.  Walker,  13  Ves.  601,  604;  Crowe  v.  Ballard,  2  Cox,  253;  S.  C.  3  B.  C.  C.  117; 
Dunbar  v.  Tredennick,  2  B.  &  B.  304.      • 

{i)  Attorney-General  v.  Lord  Dudley,  Coop.  146. 

(y)  Gregory  v.  Gregory,  Coop.  201. 

\k)  Campbell  v.  Walker,  5  Ves.  680,  682,  per  Lord  Alvanley  ;  Chalmer  v.  Bradley, 
1  J.  &  W.  59,  per  Sir  T.  Plumber;  Ex  parte  James,  8  Ves.  351,  per  Lord  Eldou ; 
Webb  V.  Rorke,  2  Sch.  &  Lef.  672,  per  Lord  Redesdale  ;  Randall  v.  Erringtou,  10 
Ves.  427,  per  Sir  W.  Grant. 

{I)  Parkes  v.  White,  11  Ves.  226,  per  Lord  Eldon ;  and  see  Morse  v.  Royal,  12 
Ves.  374,  378. 

(m)  Price  v.  Byrn,  cited  Campbell  v.  Walker,  5  Ves.  681. 

{n)  Gregory  v.  Gregory,  Coop.  201  ;  Champion  v.  Rigby,  1  R.  &  M.  539 ;  Roberts 
V.  Tunstall,  4  Hare,  257. 

(o)  Baker  v.  Read,  18  Beav.  398. 

Ip)  See  Oliver  v.  Court,  8  Price,  167,  168. 


402       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

sale  has  been  opened  after  an  interval  of  ten  years  ^(j)  and  even  after  a 
mucli  greater  lapse  of  time  where  the  executor  had  purchased  in  the 
*naines  of  trustees  for  himself,  and  the  transaction  was  attended 
L  '*'   J  with  circumstances  of  disguise  and  concealment. (r) 

Persons  not  sui Juris,  as  femes  covert  and  infants,  cannot  be  precluded 
from  relief  on  the  ground  of  acquiescence  during  the  continuance  of  the 
disability,  (s)  But  femes  covert  as  to  property  settled  to  their  separate 
use,  if  their  power  of  anticipation  be  not  restricted,  are  regarded  as  femes 
sole.{t^ 

A  class  of  persons,  as  creditors,  cannot  be  expected  in  the  prosecution 
of  their  common  interest  to  exert  the  same  vigour  and  activity  as  indivi- 
duals would  do  in  the  pursuit  of  their  exclusive  rights.(if)  Accordingly 
creditors  have  succeeded  in  their  suit  after  a  laches  of  twelve  years  ;(z;) 
but  even  creditors  will  be  barred  of  their  remedy  if  they  be  chargeable 
with  very  gross  laches,  as  with  acquiescence  in  the  sale  for  a  period  of 
thirty-three  years. (w) 

For  laches  to  operate  as  a  bar,  it  must  be  shown  that  the  cestui  que 
trust  knew  the  trustee  was  the  purchaser;  for  while  the  cestui  que  trust 
continues  ignorant  of  that  fact,  he  cannot  be  blamed  for  not  having 
quarrelled  with  the  sale. (a:) 

The  effect  of  the  length  of  time  may  also  be  materially  influenced  by 
the  continued  distress  of  the  cestui  que  trust, [y)  but  poverty  is  merely  an 
ingredient  in  the  case,  and  will  not  alone  displace  the  bar.(;:) 

Of  course  the  cestui  que  trrist  may  ratify  the  sale  to  the  trustee  by  an 
express  and  actual  confirmation;  (a)  and  if  the  cestiii  que  trust  choose  to 

,„  confirm  it,  he  cannot  afterwards  annual  *his  own  act  on  the 
L         J  ground  of  no  adequate  consideration. ^t)     But, 

1.  The  confirming  party  must  be  sui  juris — not  labouring  under  any 
disability,  as  infancy  or  coverture. (c)  However,  in  the  case  of  real  estate 
a  feme  covert  can,  of  course,  confirm  the  purchase  under  the  operation 

iq)  Hall  T.  Noyes,  cited  Whichcote  v.  Lawrence,  3  Ves.  748. 
r)  "Watson  v.  Toone,  6  Mad.  153. 
s)  Campbell  v.  Walker,  5  Ves.  6T8 ;  S.  C.  13  Ves.  601 ;  Roche  v.  O'Brien,  1  B. 
&  B.  330,  see  339. 

(t)  See  infra. 

(u)  Whichcote  v.  Lawrence,  3  Ves.  "740,  see  752;  Ex  parte  Smith,  1  D.  &  C. 
267;  Hardwick  v.  Mynd,  1  Anst.  109;  and  see  Kidney  v.  Coussmaker,  12  Ves. 
158  ;  York  Buildings'  Company  v.  Mackenzie,  8  B.  P.  C.  42  ;  Ex  parte  Smith,  I 
D.  &  C.  267. 

(v)  Anon,  case  in  the  Exchequer  cited  Lister  v.  Lister,  6  Ves.  632. 

(w)  See  Hercy  v.  Dinwoody,  2  Ves.  jun.  87 ;  and  see  Scott  v.  Nesbitt,  14  Ves. 
446. 

(x)  Randall  v.  Errington,  10  Ves.  423,  see  427;  Chalmer  v.  Bradley,  1  J.  & 
W.  51. 

(y)  Oliver  v.  Court,  8  Price,  127,  see  167,  168;  and  see  Gregory  v.  Gregory, 
Coop.  201 ;  Roche  v.  O'Brien,  1  B.  &  B.  342. 

(z)  Roberts  v.  Tunstall,  4  Hare,  257;  see  p.  267. 

{a)  Morse  v.  Royal,  12  Ves.  355 ;  Clarke  v.  Swaile,  2  Ed.  134 ;  and  see  Chester- 
field V.  Janssen,  2  Ves.  125  ;  S.  C.  1  Atk.  301. 

{b)  Roche  v.  O'Brien,  1  B.  &  B.  353,  per  Lord  Manners. 

(c)  Campbell  v.  Walker,  5  Ves.  678 ;  S.  C.  13  Ves.  601 ;  Roche  v.  O'Brien,  1  B. 
&  B.  330,  see  339 ;  and  see  Scott  v.  Davis,  4  M.  &  C.  92. 


DUTIES  OF  TRUSTEES  FOE,  SALE.         403 

of  the  fines  and  recoveries  act,(<:Z)  and  if  property,  wliether  real  or  per- 
sonal, be  settled  to  her  separate  use  (provided  her  power  of  anticipation 
be  not  restricted)  she  has,  to  the  extent  of  the  interest  so  settled  to  her 
separate  use,  all  the  capacity  of  a  feme  sole.(e) 

2.  The  confirmation  must  be  a  solemn  and  deliberate  act,  not,  for 
instance,  fished  out  from  loose  expressions  in  a  letter  ;(/)  and  particularly 
where  the  original  transaction  was  infected  with  fraud,  the  confirmation 
of  it  is  so  inconsistent  with  justice,  and  so  likely  to  be  accompanied  with 
imposition,  that  the  court  will  watch  it  with  the  utmost  strictness,  and 
not  allow  it  to  stand  but  on  the  very  clearest  evidence.((7) 

3.  There  must  be  no  sujjpressio  veri  or  suggestio  falsi,  but  the  cei^tui 
que  trust  must  be  honestly  made  acquainted  with  all*  the  material  circum- 
stances of  the  case.(/t) 

4.  The  confirming  party  must  not  be  ignorant  of  the  Imc,  that  is,  he 
must  be  aware  that  the  transaction  is  of  such  a  character  that  he  could 
impeach  it  in  a  court  of  equity,  (i) 

*5.  The  confirmation  must  be  wholly  distinct  from  and  inde-  r*j^-g-| 
pendent  of  the  original  con tract(^) — notaconveyanceof  the  estate  L  '  J 
executed  in  pursuance  of  a  covenant  in  the  original  deed  for  further 
assurance.0 

6.  The  confirmation  must  not  be  wrung  from  the  cestui  que  triist  by 
distress  or  terror,  (m) 

7.  Where  the  cestuis  que  trust  are  a  class  of  persons,  as  creditors,  the 
sanction  of  the  major  part  will  not  be  obligatory  on  the  rest;  but  the 
confirmation  to  be  complete,  must  be  the  joint  act  of  the  whole  body.(/() 

(d)  3  &  4  W.  4,  c.  74 ;  and  see  8  &  9  Vict.  c.  106.  (e)  See  infra. 

(/)  Carpenter  v.  Heriot,  1  Ed.  338  ;  and  see  Montmorency  v.  Devereux,  7  CI.  & 
Fin.  188. 

{g)  Morse  v.  Royal,  12  Ves.  373,  per  Lord  Erskine. 


Morse 

&  B.  338,  and  following  pages  , 

Cholmley,  1  Russ.  &  M.  425  ;  S.  C.  Taml.  444  ;  Cliesterfield  v.  Janssen,  2  Ves.  146. 

149,  152*,  158;  Chalmer  v.  Bradley,  1  J.  &  W.  51. 

(i)  See  Cann  v.  Cann,  1  P.  W.  727;  Dunbar  v.  Tredennick,  2  B.  &  B.  317  ; 
Burney  v.  Macdonald,  15  Sim.  15;  Molony  v.  L'Estrange,  1  Beat.  413;  Crowe  v. 
Ballard,  2  Cox,  257;  S.  C.  1  Ves.  jun.  220;  S.  C.  3  B.  C.  C.  120  ;  Watts  v.  Hyde, 
2  Coll.  377;  Baugh  v.  Price,  Cockerell  v.  Cholmley,  Chesterfield  v.  Janssen, 
Chalmer  V.  Bradley,  Murray  v.  Palmer,  Roche  v.  O'Brien,  ubi  supra. 

(k)  See  Wood  v.  Downes,  18  Ves.  128;  Morse  v.  Royal,  12  Ves.  373;  Scott  v. 
Davis,  4  M.  &  C.  91,  92 ;  Roberts  v.  Tunstall,  4  Hare,  267. 

(l)  Roche  v.  O'Brien,  1  B.  &  B.  330,  see  338  ;  Wood  v.  Downes,  18  Ves.  120,  see 
123  ;  and  see  Fox  v.  Mackreth,  2  B.  C.  C.  400.  . 

(m)  See  Roche  v.  O'Brien,  1  B.  &  B.  330 ;  Dunbar  v.  Tredennick,  Crowe  v. 
Ballard,  Chesterfield  v.  Janssen,  ubi  supra. 

(n)  Sir  G.  Colebrook's  case,  cited  Ex  parte  Hughes,  6  Ves.  622;  Ex  pane 
Lacey,  id.  628  ;  the  cases  cited,  id.  630,  note  {b).  Whelpdalc  v.  Cookson,  cued 
Campbell  v.  Walker,  5  Ves.  682,  must  be  considered  as  greatly  shaken,  if  not 
actually  overruled. 


404 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


r*474]  *CH AFTER    XVII. 

DUTIES    OF    TRUSTEES   FOR   PAYMENT   OF   DEBTS. 

We  shall  first  premise  a  few  observations  upon  tlie  validity  of  a  trust 
for  payment  of  debts. 

A  trust  for  this  purpose  may  be  created  either  by  will  or  by  act  inter 


VIVOS 


A  trust  created  by  ^vUl  for  payment  of  debts  out  of  personal  estate  is 
so  far  a  nullity,  that  the  executor  is  bound,  at  all  events,  to  provide  for 
the  payment  of  debts  out  of  the  assets  in  due  course  of  administration, 
and  would  not  be  justified  in  the  breach  of  this  legal  obligation  by  plead- 
ing any  expression  of  intention  on  the  part  of  the  testator.  It  is  only 
as'respects  any  surphis  personal  estate  after  payment  of  debts  that  the 
executor  ought  to  regulate  his  administration  by  the  directions  of  the 
will.  A  devise,  however,  of  real  estate  for  payment  of  debts  is,  in  all 
cases,  unimpeachable,  for  the  statutes  that  have  avoided  devises  as  against 
specialty,(a)  and  now  as  against  simple  contract  creditors,(6)  have  ex- 
pressly excepted  devises  for  payment  of  debts. 

As  to  trusts  created  by  act  inter  vivos,  a  distinction  must  be  observed 
between  non-traders  and  traders. 

1.  If  the  settlor  be  not  a  trader,  and  therefore  not  amenable  to  the 
bankrupt  laws,  he  is  at  perfect  liberty  to  dispose  either  of  the  w7iole[c)  or 
of  2Jart  of  his  property,(fZ)  for  payment  of  all{e)  *or  any  number 
[  ■*' ^J  of  his  creditors. (/)  The  argument  formerly  urged  for  the  inva- 
lidity of  such  a  trust  was  that  the  13  Eliz.  c.  5,(^7)  avoided  "  all  aliena- 
tions contrived  oi  fraud,  to  delay  creditors  and  others  of  their  just 
debts,"  &c.  But  with  respect  to  a  trust  for  the  satisfaction  of  creditors 
generally — "  How,"  said  Le  Blanc,  "  can  it  be  fraudulent  for  a  person 
not  the  object  of  the  bankrupt  laws  to  make  the  same  provision  volun- 
tarily for  the  benefit  of  all  his  creditors  which  the  law  compels  to  be 
done  in  the  case  of  a  bankrupt  trader  ?"(/i)  and  if  the  settlor  direct  the 
payment  of  particular  debts  only,  "  It  is  neither  illegal  nor  immoral," 
said  Lord  Kenyon,  "  to  prefer  one  set  of  creditors  to  another."(t)     Nor 

(a)  11  G.  4,  &  1  W.  4,  c.  47.  (6)  3  &  4  W.  4,  c.  104. 

(c)  Ingliss  V.  Grant,  5  T.  R.  530 ;  Nunn  v.  Wilsmore,  8  T.  R.  528,  per  Lord 
Kenyon;  Pickstock  v.  Lyster,  3  M.  &  S.  371 ;  Leonard  v.  Baker,  1  M.  &  S.  251 ; 
see  Meux  v.  Howell,  4  East,  1.  What  property  will  pass  by  general  words  in  a 
creditor's  deed  and  whether  the  trustees  can  disclaim  any  part  which  is  a  damnosa 
possessio,  see  How  v.  Kennett,  3  Ad.  &  Ell.  659 ;  Carter  v.  Warne,  M.  &  M.  479  : 
West  V.  Stewart,  14  M.  &  W.  47  ;  Moore  v.  Petchell,  22  Bear.  172,  in  which  case, 
however,  Jones  v.  Scott,  1  R.  &  M.  255,  reversed  in  D.  P.  4  CI.  &  Fin.  382,  appears 
to  have  been  altogether  overlooked. 

{d)  Estwick  V.  Caillaud,  5  T.  R.  420  ;  Goss  v.  Neale,  5  Taunt.  19  ;  see  Meux  v. 
Howell,  4  East,  1. 

(e)  Meux  v.  Howell,  4  East,  1;  Ingliss  v.  Grant,  5  T.  R.  530;  Pickstock  v. 
Lyster,  3  M.  &  S.  371;  Leonard  v.  Baker,  1  M.  &  S.  251. 

'(/)  Estwick  V.  Caillaud,  5  T.  R.  420  ;  Nunn  v.  Wilsmore,  8  T.  R.  528,  per  Lord 
Kenyon;  Goss  v.  Neale,  5  Taunt.  19  ;  Wood  v.  Dixie,  7  Q.  B.  R.  892. 

(g)  Perpetuated  29  Eliz.  c.  5. 

{h)  Meux  V.  Howell,  4  East,  9.  {i)  Estwick  v.  Caillaud,  5  T.  R.  424. 


DUTIES    OF    TRUSTEES    FOR    PAYMENT    OF    DEBTS.    405 

does  the  creation  of  such  a  trust  fall  within  the  scope  of  the  act;  for  "  it 
is  not  every  feoffment,  judgment/'  &c.,  said  Lord  Ellenborough,  <<  which 
will  have  the  effect  of  delaying  or  hindering  creditors  of  their  debts,  &c., 
that  is  therefore  fraudulent  within  the  statute  ;  for  such  is  the  effect^?-o 
tanto  of  every  assignment  that  can  be  made  by  one  who  has  creditors; 
every  assignment  of  a  man's  property,  however  good  and  honest  the 
consideration,  must  diminish  the  fund  out  of  which  satisfaction  is  to  be 
made  to  his  creditor,  but  the  feoffment,  judgment,  &c.,  must  be  devised 
of  malice,  fraud,  or  the  like,  to  bring  it  within  the  statute.  The  act 
was  meant  to  prevent  deeds,  &c.,  fraudulent  in  their  concoction,  and  not 
merely  such  as  in  their  effect  might  delay  or  hinder  other  creditors. "(/c) 

But  the  act  relating  to  insolvent  debtors  provides,  that  if  any  insol- 
vent{l\  shall  voluntarilyrm)  convey  or  assign  any  estate,  real  or  personal, 
in  trust  for  creditors,  every  such  conveyance  or  assignment  shall  be 
deemed  fraudulent  and  void  as  against  the  assignees,  if  made  "  within 
three  calendar  months  before  the  commencement  of  his  imprisonment,  or 
with  the  *view  or  intention  of  petitioning  the  court  for  his  dis-  r*  i^p-i 
charge  under  the  act,"(M)  and  a  voluntary  deed  within  the  three  •-  -• 
months  will  be  void  under  this  section  though  made  in  favour  of  all  the 
assignor's  creditors. (o) 

And  in  all  cases  a  trust  for  payment  of  debts  will  be  void,  if  vitiated 
by  actual  fraud,  as  if  the  debtor  by  an  understanding  between  him 
and  his  trustees  be  left  in  possession  of  the  estate,  so  as  to  obtain  a  ficti- 
tious credit,  (p) 

Suppose  there  is  no  fraud,  but  the  trust  deed  is  a  mere  voluntary 
settlement  not  founded  on  any  arrangement  with  the  creditors,  but  for 
the  mere  convenience  of  the  debtor  himself,  so  that  by  the  recent  deci- 
sions it  is  revocable  by  the  debtor  at  any  time  until  communicated  to 
some  creditor  •,[q)  in  such  a  case  can  a  creditor,  taking  out  execution, 
levy  his  debt  upon  the  property  subject  to  the  trust?  It  seems,  though 
the  deed  is  voluntary,^ at  it  is  not  to  be  considered  as  fraudulent  within 
the  statute  13  Eliz.  c.  5,  and  if  so,  the  creditor  cannot  reach  the  property 
at  law.M  However,  the  Court  of  Chancery  might  perhaps  hold  the 
deed  to  be  invalid  as  against  the  creditor  in  a  court  of  equity,  (s) 

And  where  the  trust  was  originally  good,  yet  a  creditor  will  not  be 

(k)  Meux  V  Howell,  4  East,  13,  14. 

(I)  The  words  are,  any  prisoner,  &c.,  being  in  insolvent  circumstances. 

(m)  Stuckey  v.  Drewe,  2  M.  &  K.  190;  Mogg  v.  Baker,  3  M.  &  W.  195;  4  M. 
&  W.  348. 

(n)   1  &  2  V.  c.  110,  s.  59. 

(o)  Jackson  v.  Garnett,  2  Q.  B.  R.  887  ;  Thompson  y.  Jackson,  3  M.  &  Gr.  G21  ; 
S.  C.  4  Scott,  N.  R.  234. 

(p)  Twyne's  case,  3  Re.  80  a;  Wilson  v.  Day,  2  Burr.  827;  Hungerford  v. 
Earle,  2  Vern.  261  ;  Tarback  v.  Marbury,  2  Vern.  510  ;  Law  v.  Skinner,  W.  Black. 
Re.  996  ;  and  see  Worsley  v.  Demattos,  1  Burr.  467  ;  Stone  v.  Gratham,  2  Buls. 
218;  Pickstock  V.  Lyster,  3  M.  &  S.  371  ;  Dutton  v.  Morrison,  17  Ves.  197. 

(q)  Wallwyn  v.  Coutts,  3  Mer.  707;  S.  C.  3  Sim.  14;  Garrard  v.  Lord  Lauder- 
dale, 3  Sim.  1;  Acton  v.  Woodgate,  2  M.  &  K.  492;  Kirwau  v.  Daniel,  5  Hare, 
500  ;  Harland  v.  Binks,  15  Q.  B.  R.  713. 

(r)  Pickstock  v.  Lyster,  3  M.  &  S.  371 ;  Estwick  v.  Caillaud,  5  T.  R.  420.  But 
see  Owen  v.  Body,  5  Ad.  &  Ell.  28. 

(s)  See  Mackinnon  v.  Steward,  1  Sim.  N.  S.  90,  91. 


406       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

bound  by  the  arrangement,  but  may  recover  liis  whole  debt,  if  the  terms 
of  the  composition  be  not  strictly  and  literally  fulfilled  }  for  cujus  est  dare 
ejus  est  disponere,  the  creditor  has  a  right  to  prescribe  the  conditions  of 
his  indulgence. (^) 

*A  deed  if  expressed  on  the  face  of  it  to  be  voluntary,  as  for 
L  ^  natural  love  and  affection,  may  yet  be  proved  to  have  been 
founded  on  valuable  consideration,  and  so  unimpeachable  by  creditors. 
The  deed  binds  as  between  the  parties  to  it,  but  does  not  preclude  evi- 
dence aliunde  as  regards  third  persons.(M) 

2.  If  the  settlor  be  a  trader,  then  the  case  is  governed  by  the  operation 
of  the  bankruptcy  laws. 

By  the  12  &  13  Vict.  c.  106,  s.  67,  (being  a  re-enactment  of  the  pre- 
vious statutes,)  it  is  declared  that  "  any  fraudulent  grant  or  conveyance 
of  any  lands,  tenements,  goods,  or  chattels,  with  intent  to  defeat  or  delay 
creditors,  shall  be  deemed  an  act  of  bankruptcy."  It  has  been  adjudged 
fraudulent  within  the  meaning  of  this  clause,  if  a  trader  assign  the  whole 
of  his  property(i;)  (whether  expressed  to  be  the  whole  or  not  in  the 
deed,)(M;)  or  all  but  a  colourable  part,(a.')  or  all  the  stock,  without  which 
he  cannot  carry  on  his  trade  ;(y)  and  it  is  immaterial  whether  the  trust 
be  for  any  particular  creditor,(5;)  or  a  certain  member  of  them, (a)  or  all 
r*47S1  ^^^  creditors  at  large.(6)  *By  the  assignment  of  his  whole  sub- 
*-  J  stance  he  becomes  utterly  insolvent;  and  if  the  trust  be  for  one 
or  some  only  of  his  creditors,  it  is  a  fraud  upon  the  rest,  and  if  it  be  for 
all  the  creditors,  it  is  a  fraud  upon  the  spirit  of  the  bankruptcy  laws, 
which  require  a  bankrupt's  estate  to  be  under  the  management  of  certain 
commissioners  and  assignees  appointed  as  prescribed  by  the  legislature — 
not  of  persons  nominated  by  the  debtor  himself,  and  so  more  likely  to 

(t)  Sewell  V.  Musson,  1  Vern.  210;  Mackenzie  v.  Mackenzie,  16  Ves.  374,  per 
Lord  Eldon;  Leigh  v.  Barry,  3  Atk.  583,  per  Lord  Hardwicke;  Ex  parte  Bennet, 

2  Atk.  521,  per  eundem;  and  see  Fuller  v.  Lance,  7  Vin.  Ab.  136. 
(m)  Gale  V.  Williamson,  8  M.  &  W.  405. 

{v)  Nunn  v.  Wilsmore,  8  T.  R.  528,  per  Lord  Kenyon ;  Alderson  v.  Temple,  4 
Burr.  2240,  per  Lord  Mansfield;  Hooper  v.  Smith,  W.  Bl.  Re.  441,  per  eundem; 
Wilson  V.  Day,  2  Burr.  827  ;  Rust  v.  Cooper,  Cowp.  632,  per  Lord  Mansfield; 
Bowker  v.  Burdekin,  12  M.  &  W.  128. 

[w)  See  Button  v.  Morrison,  17  Ves.  193  ;  Linden  v.  Sharp,  6  Man.  &  Gr.  905. 
But  the  assignment  of  all  his  property  at  a  certain  place  is  not  an  act  of  bank- 
ruptcy, unless  it  be  proved  that  he  had  no  other  property.  Chase  v.  Goble,  2  Man. 
&  Gr.  930. 

{x)  Law  V.  Skinner,  W.  Bl.  Re.  996;  Hooper  v.  Smith,  ib.  442,  per  Lord  Mans- 
field ;  Wilson  V.  Day,  2  Burr.  832,  ;jcr  eundem;  Alderson  v.  Temple,  4  Burr.  2240, 
per  eundem ;  Estwick  v.  Caillaud,  5  T.  R.  424,  per  Lord  Kenyon ;  Gayner's  case, 
cited  1  Burr.  477  ;  Compton  v.  Bedford,  W.  Bl.  Re.  362. 

(y)  Hooper  v.  Smith,  Bl.  Re.  442  ;  Law  v.  Skinner,  W.  Bl.  Re.  996  ;  Siebert  v. 
Spooner,  1  M.  &  W.  714;  Porter  v.  Walker,  1  Man.  &  Gr.  686  ;  Ex  parte  Bailey, 

3  De  Gex,  M.  &  G.  534 ;  Ex  parte  Taylor,  5  De  Gex,  M.  &  G.  392. 

(z)  Wilson  V.  Day,  2  Burr.  827  ;  Hassell  v.  Simpson,  1  B.  C.  C.  99 ;  S.  C.  Doug. 
89,  note;  Hooper  v.  Smith,  W.  Bl.  Re.  442,  per  Lord  Mansfield;  Worsley  v. 
Demattos,  1  Burr.  467  ;  Newton  v.  Chantler,  7  East,  138. 

(a)  Ex  parte  Foord,  cited  Worsley  v.  Demattos,  1  Burr.  477  ;  Alderson  v.  Temple, 

4  Burr.  2240,  per  Lord  Mansfield;  Butcher  v.  Easto,  Doug.  282  ;  Devon  v.  Watts, 
Doug.  86;  Hooper  v.  Smith,  W.  Bl.  Re.  442,  per  Lord  Mansfield. 

{b)  Kettle  V.  Hammond,  1  Cooke's  B.  L.  108,  3rd.  edit.;  Eckhardt  v.  Wilson,  8 
T.  R.  140;  Tappenden  v.  Burgess,  4  East,  230;  Dutton  v.  Morrison,  17  Ves.  199, 
per  Lord  Eldon  ;  Simpson  v.  Sikes,  6  M.  &  S.  312. 


DUTIES    OF    TRUSTEES    FOR    PAYMENT    OF    DEBTS.    407 

further  liis  views  tlian  promote  the  interest  of  the  creditors. (c)  But  in 
order  to  avoid  the  deed  there  must  be  in  existence  a  debt  due  at  the  time 
of  its  execution, (f?)  and  the  assignment,  though  void  as  against  creditors 
and  the  assignees  in  bankruptcy,(e)  is  good  as  between  the  parties  them- 
selves ;[/)  and  assignments  for  valuable  consideration,  at  the  full  price, 
where  the  purchaser  is  not  party  or  privy  to  the  fraudulent  designs  of 
the  vendor,  are  not  acts  of  bankruptcy  and  cannot  be  impeached. (^) 
And  where  a  trader,  greatly  embarrassed,  who  had  committed  acts  of 
bankruptcy,  executed  a  trust  deed  for  the  purpose  of  effecting  a  conver- 
sion of  his  property  and  facilitating  arrangements  with  his  creditors,  the 
deed  was  held  not  to  be  an  act  of  bankruptcy.  (A) 

The  deed  will  be  an  act  of  bankruptcy,  notwithstanding  a  proviso 
declaring  it  void,  if  the  trustees  think  fit,{l)  or  if  all  the  creditors  shall 
not  execute  (the  acts  of  the  trustees  to  he  good  in  the  meantime  ;)(/^)  or  if 
all  the  creditors  to  a  certain  amount  shall  not  execute  hy  such  a  time,  or 
a  commission  of  bankruptcy  shall  issue. (l^j  So  it  will  be  an  act  of  bank- 
ruptcy though  the  trustees  at  the  time  of  the  execution  of  the  deed  did 
not  intend  to  act  upon  it  (for  the  fraud  must  be  referred  to  the  animus 
of  *the  trader  ;Vmj  and  though  the  trustees  induced  the  debtor  p::c.-Q-| 
to  execute  it,  with  the  object  of  making  it  an  act  of  bankrupt-  L  J 
cy  ;(n)  and  though  the  debtor  himself  meant  it  to  be  taken  as  such.(o) 

But  if  A.,  B.,  and  C.  agree  to  execute  an  assignment  as  a  joint  trans- 
action, and  A.  executes,  but  B.  and  C.  refuse,  then,  as  the  assignment 
of  A.  was  made  on  the  footing  and  faith  of  B.  and  C.'s  concurrence,  and 
therefore  cannot  be  enforced  against  A.  individually  and  solely,  it  is  no 
act  of  bankruptcy,  (^j) 

An  assignment  executed  abroad  was  held  to  be  no  act  of  bankruptcy 
in  England  -.{q)  but  in  this  respect  the  law  has  been  altered  by  statute. (r) 

If  any  creditors  either  concur  in  the  assignment,(.s)  or  subsequently 
acquiesce  in  it,(A  they  cannot  afterwards  treat  it  as  an  act  of  bankruptcy, 

(c)  See  Button  v.  Morrison,  17  Yes.  199;  Worsley  v.  Demattos,  1  Bur.  476; 
Simpson  v.  Sikes,  6  M.  &  S.  312. 

(rf)  Ex  parte  Taylor,  5  De  Gex,  M.  &  G.  392;  Ex  parte  Louch,  1  De  Gex,  612; 
Oswald  Y.  Thompson,  2  Exch.  Re.  215. 

(e)  Doe  V.  Ball,  11  M.  &  W.  531. 

(/)  Bessey  v.  Windham,  6  Q.  B.  Re.  166. 

{g)  Baxter  v.  Pritchard,  1  Ad.  &  Ell.  456  ;  Rose  v.  Haycock,  ib.  460 ;  Bittleston 
V.  Cooke,  2  Jur.  N.  S.  758  ;  Button  v.  Crutwell,  1  Ell.  &  Bl.  15. 

(A)  Greenwood  v.  Churchill,  1  M.  &  K.  546;  Smith  v.  Hurst,  11  Hare,  30. 

(?)  Tappenden  v.  Burgess,  4  East,  230. 

(k)  Back  V.  Gooch,  4  Campb.  232;  S.  C.  Holt,  13. 

(I)  Button  V.  Morrison,  17  Ves.  193.       (m)  Tappenden  v.  Burgess,  4  East,  230. 

\n)  Id.  (o)  Simpson  v.  Sikes,  6  M.  &  S.  295. 

{p)  Button  V.  Morrison,  17  Ves.  193,  see  202  ;  and  see  Bowker  r.  Burdekin,  11 
M.  &  W.  128, 

{q)  Norden  v.  James,  2  Dick.  533 ;  Ingliss  v.  Grant,  5  T.  R.  530. 

{r)  6  G.  4,  c.  16.  s.  3,  repealed  and  re-enacted  by  12  &  13  Vict.  c.  106,  s.  67. 

(«)  Eckhard  v.  Wilson,  8  T.  R.  142,  per  Cur.;  Bamford  v.  Baron,  2  T.  R.  594, 
note  [a)  ;  Tappenden  v.  Burgess,  4  East,  230,  per  Lord  EUenborough ;  Ex  parte 
Cawkwell,  1  Rose,  313. 

{t)  Ex  parte  Crawford,  1  Chris.  B.  L.  97,  140;  Ex  parte  Low,  1  G.  &  J.  84,  per 
Lord  Eldon;  Ex  parte  Cawkwell,  1  Rose,  313;  Ex  parte  Shaw,  1  Mad.  598;  Back 
V.  Gooch,  4  Camp.  432 ;  S.  C.  Holt,  13. 


408  LEW  IN    ON    THE    LAW    OF    TRUSTS,    ETC. 

for  it  is  not  fraudulent  as  to  them.  Nor  can  a  trust  deed  which  could 
not  have  been  impeached  under  a  fiat  sued  out  by  any  creditor  be  im- 
peached under  the  bankrupt's  own  fiat.(«) 

The  late  act(y)  has  now  provided,  that  where  any  trader  within  the 
act  shall  execute  any  conveyance  or  assignment  by  deed  of  all  his  estate 
and  effects  to  a  trustee  or  trustees  for  the  benefit  of  all  his  creditors, 
it  shall  not  be  deemed  an  act  of  bankruptcy,  unless  a  petition  for  adju- 
dication of  bankruptcy  be  filed  within  three  months  from  the  execution 
thereof;  provided  that  such  deed  be  executed  by  every  such  trustee  \i\i\\\n 
„  fifteen  days  after  the  execution  thereof  by  the  trader;  *and  that 
L  -1  the  execution  by  such  trader  and  every  such  trustee  be  attested 
hy  an  attorney  or  solicitor  ;  and  that  notice  thereof  be  given  within  one 
month  after  the  execution  by  such  trader,  in  manner  therein  specified." 

If  the  above  requisitions,  therefore,  be  complied  with,  the  trust  deed 
will  now  be  unimpeachable  after  a  period  of  three  months ;  but  until  the 
expiration  of  that  time  the  trustees  must  forbear  to  act,  as  all  their  pro- 
ceedings may  be  overreached  by  a  subsequent  adjudication  of  bankruptcy. 
However,  the  trustees  may  begin  the  execution  of  their  office  even  at  an 
earlier  day,  if  they  can  only  satisfy  themselves  cither  that  all  the  credi- 
tors have  concurred  or  acquiesced  in  the  arrangement,  or  that  such  as 
have  not  cannot,  either  collectively  or  individually,  prove  a  debt  or  debts 
in  the  requisite  amount  to  support  an  adjudication  of  bankruptcy. 

Such  is  the  law  afTecting  traders  where  the  assignment  is  of  their  ^ohole 
property.  If  a  trader  assign  pari  only  in  trust  for  creditors,  then,  if  the 
transaction  he  fair  and  hona  fide,  and  in  the  ordinary  course  of  business, 
it  is  not  open  to  objection  ;(w)  but  if  the  trader  contemplated  bank- 
ruptcy,(a;)  or  even  thought  it  probable,  though  not  inevitable, (^)  and 
wished  to  give  an  undue  preference  to  certain  creditors  over  others,  it 
is  fraxululent  within  the  meaning  of  the  statute,  and  constitutes  an  act 
of  bankruptcy. 

Before  proceeding  to  the  duties  of  trustees,  it  may  be  convenient  to 
r*48n  enlarge  upon  the  two  distinct  classes  into  which  *trusts  for  pay- 
L  J  ment  of  debts  may  be  divided,  viz. :  trusts  irrevocable  and  trusts 
revocable. 

1.  The  existence  of  a  debt  is  always  a  sufl&cient  consideration  to  sup- 
port an  assurance ;  and  therefore  if  A.  be  indebted  to  B.,  and  convey  an 

[u)  Ex  parte  Philpot,  De  Gex,  346;  Ex  parte  Louch,  id.  4G3  ;  Ex  parte  Lofts, 
id.  612. 

iy)   12  &  13  Vict.  c.  106,  s.  68. 

[w)  Hale  V.  Allnut,  18  Com.  B.  Re.  505;  Wheelwright  v.  Jackson,  5  Taunt. 
109 ;  Hartshorn  v.  Slodden  ;  2  B.  &  P.  582  ;  Fidgeon  v.  Sharp,  5  Taunt.  539 ; 
Small  V.  Oudley,  2  P.  W.  427  ;  Cock  v.  Goodfellow,  10  Mod.  489;  Compton  v. 
Bedford,  1  W.  Bl.  362,  per  Lord  Mansfield;  Hooper  v.  Smith,  1  W.  Bl.  441; 
Alderson  V.  Temple,  4  Burr.  2240,  per  Lord  Mansfield;  Wilson  v.  Day,  2  Burr. 
830,^67-  eundem ;  ib.  831,  per  Forster  and  Wilmot;  Jacob  v.  Sheppard,  cited 
Worsley  v.  Demattos,  1  Burr.  478 ;  Harman  v.  Fisher,  Cowp.  123,  per  Lord  Mans- 
field ;  Rust  V.  Cooper,  Cowp.  634,  per  eundem ;  Ex  parte  Scudamore,  3  Ves.  85  ; 
and  see  Estwick  v.  Caillaud,  5  T.  R.  424;  Newton  v.  Chantler,  7  East,  144. 

{x)  Linton  v.  Bartlet,  3  Wils.  47  ;  Morgan  v.  Horseman,  3  Taunt.  241  ;  Alderson 
V.  Temple,  4  Burr.  2238;  Round  v.  Byde,  1  Cooke,  B.  L.  114,  3rd.  ed. ;  Devon  v. 
Watts,  Doug.  86  ;  Pulling  v.  Tucker,  4  B.  &  A.  382  ;  Ilarmanv.  Fisher,  Cowp.  117. 

(y)  Poland  V.  Glyn,  2  D.  &  R.  310  ;  Guthrie  v.  Crossley,  2  C.  &  P.  301. 


DUTIES    OF    TRUSTEES    FOR    PAYMENT    OF    DEBTS.    409 

estate  to  him  by  way  of  security,  the  deed,  though  no  money  passed  at 
the  time,  cannot  be  revoked,  but  B.  may  insist  on  the  benefit  of  it.  And 
if  the  creditor  be  not  a  party  to  the  deed,  yet  if,  by  arrangement  between 
him  and  the  debtor,  an  estate  is  vested  in  a  trustee  for  securing  the  debt, 
he  can  enforce  the  trust. (,v)  Even  where  a  debtor  entered  into  an  arrange- 
ment with  three  of  his  creditors,  and  in  pursuance  thereof,  by  a  deed 
between  himself  of  the  first  part,  the  three  creditors  of  the  second  part, 
and  his  other  creditors  of  the  third  part,  conveyed  all  his  real  and  per- 
sonal estate  to  the  three  creditors,  in  trust  for  themselves  and  the  other 
creditors,  it  was  held  that  the  intention  was  to  make  the  creditors  rcsfuis 
que  trust,  and  that  the  deed  was  irrevocable ;  and  no  distinction  was  taken 
between  the  three  creditors  and  the  other  creditors,  although  the  latter 
apparently  had  not  been  in  communication  with  the  debtor  previous  to 
the  deed,  and  had  not  executed  it  until  some  time  afterwards. (a) 

2.  On  the  other  hand,  if  a  debtor,  without  communication  with  his 
creditors,  and,  indeed,  only  from  motives  of  personal  convenience,  as  on 
going  abroad,^?;)  vest  an  estate  in  trustees  upon  trust  to  pay  his  debts, 
such  a  deed  confers  no  right  upon  the  creditors  who  are  neither  parties 
nor  privies,  and  the  debtor  may  at  any  time,  at  his  pleasure,  revoke  or 
vary  the  trusts,  or  call  for  the  re-transfer  of  the  property. (c)  And  if 
two  persons  have  different  interests  in  the  same  estate,  and  they,  by 
arrangement  between  themselves,  but  without  communication  with  any 
creditor,  convey  the  property  to  trustees,  upon  trust  to  pay  the  debts  of 
either  party;  here,  though  each  may  enforce  the  trust  as  against  the 
other,  yet  the  creditor,  as  he  neither  required  the  security,  nor  was  an 
object  of  bounty,  *cannot  compel  the  execution  of  the  trust  in  r-^  .o.^-i 
his  own  favour. (f?)  And  a  fortiori,  this  is  the  case  if  the  pay-  L  "'J 
ment  of  the  debt  is  to  be  made  only  on  the  request  of  the  settlor.  ^^  IJut, 
of  course,  the  trust  cannot  be  revoked  by  the  settlor,  so  as  to  defeat  or 
prejudice  what  the  trustees  may  have  previously  done  in  the  due  execu- 
tion of  the  trust. (/) 

In  Garrard  v.  Lauderdale,  the  Duke  of  York,  by  indenture  between 
himself  of  the  first  part,  and  trustees  of  the  second  part,  and  the  credi- 
tors of  the  third  part,  conveyed  certain  property  to  trustees  upon  trust 
for  his  creditors,  and  upon  the  execution  of  the  deed  a  circular  to  that 
effect  was  sent  to  each  of  the  creditors.  Here  there  was  ground  for  con- 
tending that,  as  the  creditors  had  been  induced  by  the  notice  to  forbear 
suing  the  settlor,  they  had  acquired  a  right  to  the  execution  of  the  trust, 
but  Sir  L.  Sliadwell,  observing  that  the  receipt  of  the  circular  was  not 
admitted,  and  that,  if  received,  yet  the  creditors  had  not  refrained  from 
suing,  as  they  had  proved  against  the  Duke's  estate,  decided  that  the 

(z)  Wilding  v.  Richards,  1  Coll.  GGl. 

(a)  Mackinnon  v.  Stewart,  1  Sim.  N.  S.  VG. 

(b)  Cornthwaite  v.  Frith,  4  De  Gex  &  Sm.  552. 

(c)  Walwyn  v.  Coutts,  3  Sim.  14 ;  3  Mer.  707  ;  Smith  v.  Keating,  G  Com.  B.  Re. 
136  ;  Acton  v.  Woodgate,  2  M.  &  K.  492  ;  Browne  v.  Cavendish,  1  Jon.  k  Lat.  GOG. 

(d)  Gibbs  V.  Glamis,  11  Sim.  584;  Simmonds  v.  Pallet!,  2  Jon.  &  Lat.  489. 
(c)  Evans  v.  Bagwell,  2  Con.  &  Laws.  612. 

(/)  Wilding  v.  Richards,  1  Coll.  655,  see  659;  andseeKirwnn  v.  Daniel,  5  Hare, 
493. 


410  LEW  IN    ON    THE    LAW    OF    TRUSTS,    ETC. 

creditors  had  no  equity  to  enforce  the  trust,(r7)  and  the  decree,  on  appeal 
to  Lord  Brougham,  was  affirmed. (/i)  The  authority,  however,  of  this 
case  has,  on  several  occasions,  been  questioned  ;(i)  and  Lord  St.  Leonards 
on  one  occasion  observed  he  should  be  sorry  to  have  it  understood  that  a 
man  may  create  a  trust  for  creditors,  communicate  it  to  them,  and  obtain 
from  them  the  benefit  of  their  lying  by  until  perhaps  the  legal  right  to 
sue  was  lost,  and  then  insist  that  the  trust  was  wholly  within  his  power.(Zj) 
There  can  be  little  doubt  that  upon  the  general  principles  of  equity  the 
settlor,  by  giving  notice  to  the  trustees,  and  by  subsequent  conduct,  may 
confer  on  the  creditors  a  right  which  they  did  not  originally  possess. (/) 
And  indeed  it  has  now  been  ^decided  that  if  property  be  assigned 
L  J  to  a  trustee,  and  he  takes  possession  of  it,  and  communicates  with 
certain  of  the  creditors,  who  express  their  satisfaction,  the  trust  is  irre- 
vocable, (w) 

In  one  case,  where  property  was  vested  in  a  trustee  for  creditors,  and 
the  trustee  was  a  surety  for  some  of  the  debts,  it  was  held  that,  though 
the  trust  was  revocable  as  to  the  general  creditors,  yet  the  trustee  him- 
self was  not  bound  to  reconvey  the  estate  until  the  suretyship  was  satis- 
fied. («) 

It  does  not  clearly  appear  from  the  authorities  what  is  the  precise 
nature  of  a  revocable  trust  of  this  kind.  The  instrument  is  sometimes 
called  a  deed  of  agency,  and  if  so,  the  trust  must  be  considered  at  an 
end  at  the  death  of  the  settlor,  and  the  property,  so  far  as  it  has  not 
been  applied,  must  be  administered  as  part  of  the  settlor's  assets. (o)  It 
is  perfectly  clear  that  the  trust  is  not  regarded  as  revocable  only  during 
the  life  of  the  settlor,  so  as  to  give  a  vested  interest  to  the  creditor  after 
his  death,  for  it  has  been  held  that  the  creditor  has  no  more  equity  to 
enforce  the  trust  after  the  settlor's  death  than  in  his  lifetime. (p) 

The  courts  at  the  present  day  consider  the  doctrine  under  which  these 
deeds  have  been  held  revocable  to  have  been  carried  far  enough,  and 
have  expressed  a  disinclination  to  extend  it. (5) 

We  now  proceed  to  the  duties  of  trustees  for  payment  of  debts,  and 
upon  this  subject  we  shall  consider,  1,  What  debts  are  to  be  paid;  2, 
In  what  order  as  regards  priority ;  and  3,  What  interest  is  to  be  allowed. 

{g)  3  Sim.  1. 

{h)  2  Russ.  &  MyL  451 ;  and  see  Cornthwaite  v.  Frith,  4  De  Gex  &  Sm.  552; 
Stone  V.  Van  Heythuysen,  Kay,  727. 

[i)  See  Acton  v.  Woodgate,  2  M.  &  K.  495;  Kirwan  v.  Daniel,  5  JHare,  499; 
Simmonds  v.  Palles,  2  Jon.  &  Lat.  495,  504. 

{k)  Browne  v.  Cavendish,  1  Jon.  &  Lat.  635;  7  Ir.  Eq.  Rep.  388. 

{I)  Perhaps  the  old  case  of  Langton  v.  Tracy,  2  Ch.  Rep.  30,  was  decided  on  this 
principle,  for  it  appears  that  Tracy,  the  trustee,  declared  to  the  creditors  that  he 
would  pay  the  debts,  and  that  some  of  the  debts  were  actually  paid,  under  the 
deed.  The  creditors  may  also  have  been  privies  though  not  parties  to  the  execu- 
tion of  the  trust,  for  it  is  stated  that  the  settlor  executed  the  deed  to  avoid  prose- 
cution against  him  by  his  creditors. 

(m)  Harland  V.  Binks,  15  Q.  B.  Rep.  713;  Nicholson  v.  Tutin,  2  Kay  &  Johns.  18. 

In)  Wilding  v.  Richards,  1  Coll.  655.  (0)  Wilding  v.  Richards,  1  Coll.  655. 

{p)  Garrard  v.  Lauderdale,  3  Sim.  1. 

[q)  Wilding  V.  Richards,  1  Coll.  659  ;  Kirwan  v.  Daniel,  5  Hare,  499  ;  Simmonds 
T.  Palles,  2  Jon.  &  Lat.  495,  504;  Brown  v.  Cavendish,  1  Jon.  &  Lat.  635;  Evans 
V.  Bagwell,  2  Con.  &  Laws.  616. 


DUTIES    OF    TRUSTEES    FOR    PAYMENT    OF    DEBTS.    411 

1.    Wliat  debts  are  ivifhin  the  scojye  of  the  trust. 

If  tte  trust  be  created  by  deed,  then,  unless  a  contrary  inten-  r^u jqj^-, 
*tion  be  expressed,  the  debts  only  at  the  date  of  the  deed  will  L  J 
be  intended  ;(;•)  but  if  the  provision  be  contained  in  a  will,  the  direction 
will  include  all  debts  at  the  testator's  death ;  unless  he  specially  restrict 
his  meaning  to  the  debts  at  the  making  of  his  will.(s) 

If  a  settlor  convey  all  his  real  and  personal  property  upon  trust  to  pay 
"  all  debts  then  owing  by  him,  and  which  affect  the  estates  thereby  con- 
veyed ;"  the  trust,  if  the  settlor  have  no  judgment  debts  at  the  time,  will 
be  extended  to  bond  debts,  but  not  to  simj^Ie  contract  debts. (^) 

A  direction  for  payment  of  debts  will  not  revive  a  debt  barred  by  the 
Statute  of  Limitations,(H)  though  the  trustee  or  executor  may  have  adver- 
tised for  all  creditors  to  come  in  and  prove  their  debts. (i-)  But  if  the 
claim  be  not  barred  at  the  date  of  the  deed  or  the  death  of  the  testator, 
the  statute  will  not  run  afterwards  ;(?c)  for  it  is  not  to  be  inferred  that  a 
man  abandons  his  debt  because  he  does  not  enforce  payment  at  law  when 
he  has  a  trustee  to  pay  hira.(ic)  Besides,  unless  delayed  of  necessity, 
the  trustee  ought  to  discharge  the  debt  at  once,  and  the  universal  rule 
is,  that  the  cestui  que  trust  ought  not  to  suffer  for  the  laches  of  the 
trustee.  (^) 

By  the  40th  section  of  the  late  Statute  of  Limitations(z)  it  is  declared, 
that  "  no  action,  suit,  or  other  proceeding  shall  be  brought  to  recover 
any  sum  of  money  charged  upon  or  payable  out  of  any  land  at  law  or  in 
equity,  but  within  twenty  years  next  after  a  present  right  to  receive  the 
same  accrued  to  some  person  capable  of  giving  a  discharge  for  or  release 
of  the  same,  unless,  in  the  mean  time,  some  part  thereof,  or  of  the  in- 
terest thereon,  shall  have  been  paid,  or  some  acknowledgment  of  the 
right  thereof  shall  have  been  given  in  writing,  signed  by  the  person  by 
whom  the  same  shall  *be  payable,  or  his  agent."  Upon  the  con-  p^ic'T 
struction  of  this  clause  it  was  held,  that  where  a  testatrix  had  L  J 
devised  an  estate  to  trustees  upon  trust  to  sell  and  pay  debts,  but  no  part 
of  the  produce  of  sale  had  been  set  apart  for  that  purpose,  the  right  of 
the  creditor  was  not  within  the  exception  of  the  25th  section,  but  fell 
under  the  40th  section ;  but  inasmuch  as  the  debt  had  been  acknowledged 
by  the  surviving  trustee,  that  was  sufficient  to  take  the  case  out  of  the 
statute. (rt)  But  the  opinion  of  the  vice-chancellor  that  the  case  was  not 
within  the  25th  section  cannot,  it  is  conceived,  be  supported.    The  right 

(r)  Purefoy  v.  Purefoy,  1  Vern.  28. 

(s)  Loddington  v.  Kime,  3  Lev.  433. 

{t)  Douglas  V.  Allen,  1  Con.  &  Laws.  367;  2  Drur.  &  War.  213. 

(m)  Burke  v.  Jones,  2  V.  &  B.  275,  where  all  the  cases  are  collected. 

[v)  Jones  V.  Scott,  1  R.  &  M.  255;  4  CI.  k  Fin.  382;  overruling  Andrews  v. 
Brown,  Pr.  Ch.  385. 

{w)  Hughes  V.  Wynne,  1  T.  &  R.  307 ;  Crallan  v.  Oulton,  3  Beav.  1  ;  Ilargreaves 
V.  Mitchell,  6  Mad.  326 ;  Executors  of  Fergus  v.  Gore,  1  Sch.  k  Lef.  107 ;  and  see 
Morse  v.  Langham,  cited  Burke  v.  Jones,  2  V.  &  B.  286. 

(a;)  Hughes  v.  Wynne,  1  T.  &  R.  309,  per  Cur. 

(y)  See  Executors  of  Fergus  v.  Gore,  1  Sch.  k  Lef.  110. 

(z)  3  &  4  W.  4,  c.  27. 

(a)  Lord  St.  John  v.  Bough  ton,  9  Sim.  219. 


412       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

of  the  creditor  would  subsist  until  adverse  possession  had  run  against 
his  trustee. (Z*) 

The  rule  that  the  creation  of  a  trust  keeps  alive  a  debt  not  barred  at 
the  testator's  death  does  not  apply  to  a  trust  declared  of  jjersonal  estate 
by  will,  for  the  personalty  vests  in  the  executor  upon  trust  for  the  credi- 
tors by  act  of  law,  so  that  the  words  of  the  will  are  nugatory. (c) 

The  terras  of  the  trust  will  extend  to  the  repayment  of  a  sum  of  money 
borrowed  by  an  infant  for  the  purchase  of  necessaries.  ((/) 

Shall  a  mortgagee  who  has  a  covenant  for  payment  of  his  debt  be 
allowed  to  prove  and  receive  a  dividend  upon  the  whole  amount  of  his 
debt  pari  passu  with  the  other  creditors,  or  shall  he  prove  only  for  the 
excess  of  the  debt  beyond  the  value  of  the  security,  or  what  rule  is  to 
govern  the  case?  In  bankruptcy,  the  mortgagee  proves  only  for  the 
excess  of  the  mortgage  debt  over  the  value  of  the  security,  so  that  he 
must  first  dispose  of  the  estate,  (with  the  concurrence  of  the  trustees  to 
pass  the  equity  of  redemption,)  and  then  prove  for  the  difference.  But 
in  the  administration  of  assets  by  courts  of  equity,  a  mortgagee  is  allowed 
to  prove  for  his  whole  debt  without  being  put  on  terms  as  to  his  secu- 
rity, (e)  The  trust  deed  usually  provides  for  the  case  of  persons  having 
r*zisn  specific  liens,  and  ^ingrafts  the  principle  established  in  bank- 
L  -I  ruptcy ;  but  if  there  be  no  such  clause,  and  if  the  deed  provide 
that  the  creditor  shall  release  his  debt  and  all  securities  for  the  same, 
the  mortgagee,  by  executing  the  deed,  binds  himself  to  the  other  credi- 
tors, notwithstanding  any  private  arrangement  with  the  debtor  to  the 
contrary,  that  he  will  not  take  advantage  of  his  specific  lien,  but  will 
bring  it  into  the  common  stock  and  prove  for  his  whole  debt,  and  accept 
a  dividend  jaarijjassM  with  the  rest.(/)  "  It  is  established,"  said  Lord 
Langdale,  "  by  a  series  of  decisions,  that  a  creditor  cannot  ostensibly 
accept  a  composition  and  sign  the  deed  which  expresses  his  acceptance 
of  the  terms,  and  at  the  same  time  stipulate  for,  or  secure  to  himself,  a 
peculiar  and  separate  advantage  which  is  not  expressed  upon  the 
deed."((/)  "The  moment,"  observed  Lord  Lyndhurst,  "a  creditor 
releases  his  debt,  which  he  does  by  executing  a  deed  of  this  kind,  there 
is,  of  course,  an  end  of  any  lien  he  may  have  for  it."(7i)  But  though 
the  word  ''release"  be  used  in  the  deed,  it  will  not  necessarily  operate 
as  an  absolute  and  unconditional  release,  if  the  whole  contents  of  the 
instrument,  when  taken  together,  show  that  such  was  not  the  inten- 
tion. (A 

If  a  trust  be  for  payment  of  such  creditors  as  shall  come  in  within  a 
year,  it  seems  a  creditor  who  delays  beyond  the  year  is  not  therefore  pre- 

{b)  See  infra  as  to  the  Statutes  of  Limitation. 

(c)  Jones  V.  Scott,  1  R.  &  M.  255 ;  reversed,  4  CI.  &  Fin.  382;  Freake  v.  Crane- 
feldt,  3  M.  &  C.  499 ;  Evans  v.  Tweedy,  1  Beav.  55. 

{d)  Marlow  v.  Pitfield,  1  P.  W.  558. 

\e)  See  Greenwood  v.  Taylor,  1  R.  &  M.  185;  Mason  v.  Bogg,  2  M.  &  C.  443; 
Rome  V.  Young,  4  Y.  &  C.  204 ;  Hanman  v.  Riley,  9  Hare,  App.  xli. 

(/)  Cullingworth  v.  Lloyd,  2  Beav.  385;  Buck  v.  Sh'ippam,  1  Phil.  694 ;  14 
Sim.  239. 

io)  Cullingworth  v.  Lloyd,  2  Beav.  391. 

[h)  Buck  V.  Shippam,  1  Phil.  697.  (?)  Squire  v.  Ford,  9  Hare,  47. 


DUTIES    OF    TRUSTEES    FOR    PAYMENT    OF    DEBTS.     413 

eluded  from  taking  advantage  of  the  trust,  but  the  clause  is  regarded  as 
directory  only.(/i;) 

But  a  creditor  who  repudiates  the  deed  by  his  acts,  as  by  suing  the 
debtor  contrary  to  the  provisions  of  the  deed,  will  not  be  allowed  after- 
wards (more  particularly  after  a  long  lapse  of  time)  to  retrace  his  steps 
and  take  the  benefit  of  the  deed ;  and  though  the  trustee  admit  him  to 
sign  the  deed,  the  other  creditors  will  not  be  bound  by  the  act  of  the 
trustee.  (?) 

A  discretion  is  sometimes  given  to  the  trustees  to  admit  or  r-^Ao-r-i 
*exclude  such  creditors  as  they  shall  think  proper.  The  court  L  J 
will  endeavour,  if  possible,  to  withdraw  the  rights  of  the  creditors  from 
the  caprice  of  the  trustees  ;(m)  but  if  the  settlement  clearly  give  such  a 
discretionary  power,  and  the  trustees  are  willing  to  exercise  it,  and  no 
fraud  be  found,  the  court  cannot  interfere  to  compel  the  admission  of 
any  particular  creditor,  (m) 

If  the  trustees  have  a  power  of  enlarging  the  time  and  advertise  to 
that  eflfect,  but  do  not  exercise  the  power,  and  so  exclude  a  person  who 
desired  to  come  in,  but  could  not  do  so  before  the  day  named  in  the 
deed,  the  creditor  will  be  relieved  in  equity. (o) 

If  there  be  trustees  for  payment  of  debts  and  legacies,  and  subject 
thereto  upon  trust  for  A.  for  life  with  remainder  over,  and  the  court  has 
taken  an  account  of  debts  and  legacies,  and  declared  A.  entitled  to  the 
possession,  who  is  put  in  possession  accordingly,  it  is  not  competent  for 
the  trustees  afterwards  to  make  an  admission  of  some  further  debt,  and 
to  resume  the  possession  in  order  to  discharge  it.  (2?) 

2.  As  to  the  order  of  payment. 

Where  the  trust  is  created  by  will,  the  direction  generally  is  for  pay- 
ment of  <'  debts  and  legacies."  As  regards  the  administration  of  assets, 
creditors  take  precedence  of  legatees ;  but  here,  as  both  take  under  the 
will,  and  the  testator  has  made  no  distinction,  it  seems,  upon  strict 
principle,  as  was  formerly  held,  that  creditors  and  legatees  ought  to  be 
paid  par ^J9ass^t.(g')  However,  there  can  be  little  doubt,  that  the  testa- 
tor, although  he  may  not  have  explicitly  declared  it,  meant  the  creditors 
to  precede,  and  the  courts  accordingly  (rather  straining  a  point,  that  a 
man  might  not  <'sin  in  his  grave")  have  now  indisputably  established 
that  creditors  shall  have  the  priority.(r) 

{k)  Dunch  v.  Kent,  1  Vern.  2G0  ;  and  see  Collins  v.  Reece,  1  Coll.  675;  Jolly  y. 
Norton,  3  Esp.  228;  Raworth  v.  Parker,  2  Kay  &  Johns.  1G3  ;  Spottiswoode  v. 
Stockdale,  Coop.  102;   but  see  Emmet  v.  Dewhurst,  3  Mac.  &  Gor.  587. 

(I)  Field  V.  Donoughmore,  1  Dru.  &  War.  227;  reversing  the  decision  of  Lord 
Plunkett,  2  Dm.  &  Walsh.  630. 

(m)  See  Nunn  v.  Wilsmore,  8  T.  R.  521. 

(re)  Wain  r.  Egmont,  3  M.  &  K.  445. 

(0)  Raworth  v.  Parker,  2  Kay  &  Johns.  1G3. 

{■p)  Underwood  v.  Hatton,  5  Beav.  36. 

(9)  Hixon  V.  Wytham,  1  Ch.  Ca.  248  ;  Gosling  v.  Dorney,  1  Vern.  482  ;  Anon. 
2  Vern.  133  ;  Powell's  case,  Nels.  202  ;  Wolestoncroft  v.  Long,  1  Ch.  Ca.  32  :  and 
see  Walker  v.  Meager,  2  P.  W.  552. 

(r)  Greaves  v.  Powell,  2  Vern.  248,  302,  Raithby's  ed. ;  Bradgate  v.  Ridlington, 
Mose.  56;  1  Eq.  Ca.  Ab.  141,  pi.  3;  Walker  v.  Meager,  2  P.  W.  550;  Martin  v. 
Hooper,  Rep.  t.  Hardwicke,  by  Ridgw.  209;  Whitton  v.  Lloyd,  1  Ch.  Ca.  275; 
Foly's  case,  2  Freem.  40  :  Kidney  v.  Coussmaker,  12  Ves.  154,  per  Sir  W.  Grant ; 

March,  1858.— 27 


414       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

*As  amongst  the  creditors  tbemselves,  the  court  acts  upon  the 
V-^^^]  well-known  principle  that  ''  equality  is  equity,"  and,  therefore, 
whether  the  trust  be  created  by  deed(N)  or  will,(^)  the  specialty  debts  in 
the  absence  of  express  directions  to  the  contrary  will  have  no  advantage 
over  simple  contract  debts,  but  all  will  be  paid  in  rateable  proportions ; 
and,of  course,  the  trustees  will  not  be  allowed  to  break  in  upon  this 
rule  by  first  discharging  their  own  debts. (?<) 

It  was  formerly  ruled,  that  where  a  testator  charged  his  freehold 
estate  with  debts,  and  the  estate  subject  to  the  charge  descended  to  the 
heir,  the  specialty  creditor  had  precedence,  for  it  was  argued  he  had  his 
remedy  at  law  against  the  heir  independently  of  the  will,  and  therefore 
ought  not  to  be  put  on  a  level  with  those  taking  under  the  will.(r)  The 
answer  is,  that  the  specialty  creditor  has  no  Hen  upon  the  estate,  but  can 
only  recover  the  debt  from  the  heir  personally  to  the  extent  of  the  assets 
descended.  If  the  estate  be  subject  to  the  charge,  the  heir  takes  not 
beneficially  but  only  as  trustee,  and  then  there  are  no  legal  assets  in 
consideration  of  equity,  and  the  bond  creditor  may  be  injoined  from 
pursuing  his  legal  right ;  and  on  these  grounds  it  has  been  decided  that 
specialty  debts  are  not  entitled  to  a  preference. (u-) 

It  was  also  thought  at  one  time,  that  if  the  estate  charged  with  the 
debts  was  to  be  administered  by  the  executor,  the  testator  must  have 
meant  that  the  executor  should,  as  in  his  executorial  capacity,  observe 
the  legal  priorities  •,[x)  however,  there  was  no  reason,  in  fact,  why  the 
characters  of  trustee  and  *executor  should  not  be  united  in  the 
L  -I  same  person  without  confusion,  and  so  it  has  since  been  deter- 
mined.(a-a;)  But  if  the  trust  be  expressly  to  pay  the  settlor's  debts 
"  according  to  their  priority,  nature,  and  specialty,"  a  bond-debt  with 
interest  is  payable  before  a  simple  contract  debt.(^) 

3.   As  to  alloinance  of  interest. 

Whether  the  trust  be  created  by  deed,(s)  or  will,(a)  and  though  the 

Peter  v.  Bruen,  cited  2  P.  W.  551;  Lloyd  v.  Williams,  2  Atk.  Ill,  per  Lord 
Ilardwicke. 

(s)  Wolestoncroft  v.  Long,  1  Ch.  Ca.  32 ;  Hamilton  v.  Houghton,  2  Bligh,  187, 
per  Lord  Eldon  ;  Child  v.  Stephens,  1  Vern.  101. 

(<)  Wolestoncroft  v.  Long,  1  Ch.  Ca.  32  ;  Anon.  2  Ch.  Ca.  54;  &c. 

(m)  Anon.  2  Ch.  Ca.  54. 

(I'j  Fremoult  v.  Dedire,  1  P.  W.  429  ;  Young  v.  Dennet,  2  Dick.  452 ;  Blatch  v. 
Wilder,  1  Atk.  420;  Allam  v.  Heber,  Str.  1270;  S.  C.  W.  Black,  22;  and  see 
Pljinket  V.  Penson,  2  Atk.  290. 

(w)  Shiphard  v.  Lutwidge,  8  Ves.  26;  Pope  v.  Gwyn,  cited  ib.  28,  note;  Bailey 
v.  Ekins,  7  Ves.  319;  Batson  v.  Lindegreen,  2  B.  C.  C.  94;  Hargrave  v.  Tindal, 
cited  Newton  v.  Bennet,  1  B.  C.  C.  136,  note. 

(x)  Girling  v.  Lee,  1  Vern.  63  ;  Cutterback  v.  Smith,  Pr.  Ch.  127;  Bickham  v. 
Freeman,  ib.  136;  Masham  v.  Harding,  Bunb.  339  ;  Foly's  case,  2  Freem.  49. 

{xx)  Prowse  v.  Abingdon,  1  Atk.  482  ;  Newton  v.  Bennet,  1  B.  C.  C.  135  ;  Silk 
V.  Prime,  ib.  138,  note;  S.  C.  1  Dick.  384  ;  Lewin  v.  Okeley,  2  Atk.  50;  Barker 
T.  Boucher,  1  B.  C.  C.  140,  note. 

{y)  Passingham  v.  Selby,  2  Coll.  405. 

(2)  Hamilton  v.  Houghton,  2  Bligh,  169,  see  186;  Car  v.  Burlington,  1  P.  W. 
228,  as  corrected  in  Cox's  ed. ;  Barwell  v.  Parker,  2  Ves.  364;  Shirley  v.  Ferrers, 

1  B.  C.  C.  41 :  and  see  Stewart  v.  Noble,  Vern.  &  Scriv.  536  ;  Creuze  t.  Hunter, 

2  Ves.  jun.  165  ;  S.  C.  4  B.  C.  C.  319. 

(a)  Lloyd  v.  Williams,  2  Atk.  108  ;  Stewart  t.  Noble,  Vern.  &  Scriv.  528  ;  Dol- 
man v.  Pritman,  3  Ch.  Re.  64;  Nels.  136;  Freem.  133;  Bath  v.  Bradford,  2  Ves. 


DUTIES    OF    TRUSTEES    FOR    PAYMENT    OF    DEBTS.    4]5 

fund  has  been  making  interest,(6)  the  trustees  will  not  be  justified  in 
paying  interest  upon  simph  contract  dehts ;  and  a  fortiori,  this  is  the 
case  where  interest  is  expressly  directed  as  to  some  particular  debts. (c) 
Where  the  trust  was  hy  deed,  but  the  creditors  had  not  been  made  par- 
ties, Lord  Eldon  observed,  '<  The  mere  direction  to  pay  a  debt  does  not 
infer  either  contract  or  trust  to  pay  interest  upon  debts  by  simple  con- 
tract. As  to  contract,  the  creditors  did  not  execute  the  deed,  and  there 
was  nothing  to  prevent  their  suing  the  debtor  after  the  execution,  and 
no  consideration  was  given  to  the  debtor  by  charging  the  land  and  dis- 
charging the  person. "(f/)  And  Lord  Hardwicke  said  (though  under  the 
altered  state  of  the  law  the  observation  loses  its  force]  it  would  be  mis- 
chievous to  hold  that  the  trust  should  make  the  simple  contract  debts 
carry  interest ;  for  if  the  trust  were  to  change  the  nature  of  the  debts  and 
burden  the  estate  with  interest,  it  would  frighten  people  from  doing  jus- 
tice to  creditors. (fZcZ)  It  was  once  suggested  by  Lord  *Abinger  r:^_^nm 
that  "  if  a  man  execute  a  trust  of  a  term  for  the  benefit  of  his  L  J 
creditors,  the  deed  makes  them  mortgagees  if  they  execute  it,  and  so 
gives  them  a  right  of  iuterest."(e)  And  it  was  held  in  some  old 
authorities,  that  even  in  a  deed  to  tcJiich  the  creditors  were  not  j^ar ties, 
or  in  a  trust  created  by  will  for  payment  of  debts,  the  creditors  were  to 
be  regarded  as  mortgagees  and  were  entitled  to  interest ;(/)  but  the  doc- 
trine in  these  cases  has  long  since  been  overthrown,  and  it  is  apprehended 
that  even  the  distinction  taken  by  the  chief  baron  cannot  at  the  present 
day  be  supported. (^)  Again,  it  was  said  by  Lord  Hardwicke  that  "  if 
a  man  hy  deed  in  his  life  creates  a  trust  for  payment  of  his  debts, 
annexes  a  schedule  of  some  debts,  and  creates  a  trust  term  for  the  pay- 
ment, as  that  is  in  the  nature  of  a  specialty,  it  will  make  these,  though 
simple  contract  debts,  carry  interest."(7i)  But  this  dictum  also  is  not 
in  conformity  with  the  law  as  now  established,  and  cannot  be  main- 
tained. (/) 

But  where  A,  and  B.  assigned  their  Joint  j^roperty  to  C,  D.,  and  E. 
upon  trust,  in  the  first  place  to  pay  the  Joint  debts  at  the  expiration  of  a 
year  from  the  date  of  the  assignment,  and  then  as  to  a  moiety  to  pay 
the  separate  debts  of  A.,  and  at  the  end  of  a  year  sufficient  assets  were 
realised  to  have  discharged  the  joint  debts,  but  the  money,  instead  of 
being  so  applied,  was  invested  in  the  funds  and  the  interest  accumulated, 
it  was  held,  that  as  the  fund  applicable  to  the  payment  of  the  joint  debts 

588,  per  Lord  Hardwicke  ;  and  see  Tait  v.  Northwick,  4  Ves.  816.  Bothomly  v. 
Fairfax,  1  P.  W.  334,  note  ;  Maxwell  v.  Wettenhall,  2  P.  W.  26,  ed.  by  Cox,  are 
overruled. 

{b)  Shirley  v.  Ferrers,  1  B.  C.  C.  41 ;  but  see  Pearce  v.  Slocombe,  3  Y.  &  C.  84. 

(c)  Jenkins  v.  Perry,  3  Y.  &  C.  178. 

\d)  Hamilton  v.  Houghton,  2  Bligh,  186. 

{dd)  See  Barwell  v.  Parker,  2  Ves.  364  ;  Bath  v.  Bradford,  ib.  588. 

\e)  Jenkins  v.  Perrv,  3  Y.  &  C.  183. 

(/)  Maxwell  v.  Wettenhall,  2  P.  "W.  27  ;  Car  v.  Burlington,  1  P.  W.  229. 

[g)  Barwell  y.  Parker,  2  Ves.  364.  It  must  be  borne  in  mind,  however,  that 
the  46th  Order  of  August,  1841,  gives  simple  contract  creditors  a  right  to  interest 
from  the  date  of  the  decree  out  of  any  surplus  assets  after  paying  all  debts,  and 
the  interest  of  such  as  by  law  carry  interest. 

(A)  Barwell  v.  Parker,  2  Ves.  364. 

(t)  Stone  V.  Van  Heythuysen,  Kay,  721  ;  Clowes  v.  Waters,  16  Jur.  632. 


416       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

had  been  making  interest  from  the  time  the  debts  should  have  been 
paid,  the  joint  creditors,  though  on  simple  contract,  were  entitled  to 
interest  at  4  per  cent,  before  the  separate  creditors  were  paid  their  prin- 
cipal. The  separate  creditors  would  otherwise  try  to  impede  the  general 
settlement,  that,  in  the  mean  time,  they  might  enjoy  the  interest  from 
the  joint  creditors'  fund.(^") 

*0f  course  the  creditors  may  stipulate  for  payment  of  interest, 
L  -I  or  the  settlor,  if  so  minded,  may  insert  such  a  direction. (?)  But 
a  trust  for  payment  of  specialty  and  simple  contract  debts  and  all  inte- 
rest thereof,  will  not  amount  to  such  a  direction,  but  the  words  will  be 
taken  to  have  reference  to  the  debts  carrying  interest  of  their  own 
nature,  (m) 

Specialty  debts,  though  actually  released  by  a  creditor's  deed,  will 
carry  interest  up  to  the  time  of  payment.  It  might  be  urged,  indeed, 
that  as  regards  specialty  debts  the  amount  of  the  debt  is  the  principal 
and  interest ;  and  therefore  in  a  trust  for  payment  of  debts,  interest  as 
well  as  principal  must  be  taken  into  calculation  to  ascertain  what  the 
debt  is  at  the  date  of  the  deed  or  the  death  of  the  testator;  but  that  in- 
terest ought  not  to  run  beyond  the  date  of  the  trust  deed  or  the  death 
of  the  testator,  for  that  principal  and  interest  together  are  then  regarded 
as  one  sum,  not  as  a  debt  but  an  interest  of  a  cesttii  que  trust.  And 
some  principle  of  this  kind  appears  to  have  been  acted  upon  in  the  case 
of  Car  V.  Burlington, (??)  where  a  person  vested  estates  in  trustees  upon 
trust  to  pay  all  such  debts  as  he  should  owe  at  his  death,  and  the  court 
directed  the  master  to  calculate  interest  on  such  of  the  debts  as  carried 
interest  itp  to  the  death  of  the  settlor ;  but  the  master  was  not  to  carry  on 
any  interest  on  any  security  beyond  the  settlor's  decease,  but  in  case 
there  were  assets  to  pay  the  simple  contract  debts  as  well  as  the  specialty 
debts,  the  question  of  ulterior  interest  was  reserved.  At  the  present 
.day,  however,  the  rule  is  to  consider  the  specialty  debt  as  subsisting  up 
to  the  time  of  payment,  i.  e.  to  calculate  interest  on  the  principtal  not 
only  up  to  the  date  of  the  deed  or  the  death  of  the  testator,  but  up  to 
the  day  of  payment. (o) 

Bond  creditors,  it  must  be  observed,  will  not  be  entitled  to  receive 
more  for  principal  and  interest  than  the  amount  of  the  penalty,  (p) 


(k)  Pearce  v.  Slocombe,  3  Y.  &  C.  84. 

\l)  See  Bath  v.  Bradford,  2  Ves.  588 ;  Barwell  v.  Parker,  ib.  364 ;  Stewart  v. 
Noble,  Vera.  &  Scriv.  536. 

[m)  Tail  v.  Northwick,  4  Ves.  816. 

(n)  1  P.  W.  228,  as  corrected  in  Cox's  ed.  from  Reg.  Lib. 

■(o)  Bateman  v.  Margerison,  16  Beav.  477. 

{p)  Hughes  y.  Wynne,  1  M.  &  K.  20  ;  Anon.  1  Salk.  154 :  Clowes  v.  Waters,  16 
Jar,  632. 


DUTIES    OF   TRUSTEES    OF    CHARITIES.  4I7 

*CHAPTER    XVIII.  [*492] 

THE   DUTIES    OP    TRUSTEES    OF   CHARITIES. 

Charities  are  either  established  by  charter,  as  eleemosynary  corpora- 
tions, or  are  under  the  management  of  individual  trustees. 

Before  entering  upon  tlie  duties  of  trustees  for  charities,  it  may  be 
proper  to  introduce  a  few  preliminary  remarks  upon  the  subject  of  the 
court's  jurisdiction  over  charities  established  by  charter. 

On  the  institution  of  such  a  charity  a  visitatorial  jurisdiction  arises 
of  common  right  to  the  founder,  whether  the  king  or  a  private  person, 
and  his  heirs,  or  to  those  whom  the  founder  has  substituted  in  the  place 
of  himself  and  his  heirs  ;((^)  and  the  office  of  visitor  is  to  hear  and  de- 
termine all  differences  of  the  members  of  the  society  amongst  themselves, 
and  generally  to  siqjerintend  the  internal  government  of  the  body,  and 
to  see  that  all  rules  and  orders  of  the  corporation  are  observed. h-\  The 
visitor  must  take  as  his  guide  the  statutes  originally  propounded  by  the 
founder  ;(s)  but  so  long  as  he  does  not  exceed  his  proper  province,  his 
decision  is  final,  and  cannot  be  questioned  by  way  of  appealYA 

With  this  visitatoi'ial  power  the  Court  of  Chancery  has  nothing  to 
do  :  it  is  only  as  respects  the  administration  of  the  corporate  jiroperty 
that  equity  assumes  to  itself  any  right  of  ^interference.  "If,"  r:K<QqT 
said  Lord  Commissioner  Eyre,  ''the  governors  established  for  L  J 
the  regulation  of  a  charity  are  not  those  intrusted  with  the  management 
of  the  revenue,  the  court  has  no  jurisdiction  :  let  the  charity  be  ever  so 
much  abused,  as  far  as  respects  this  court  the  abuse  is  without  a  remedy ; 
but  if  those  established  as  governors  have  also  the  management  of  the 
revenue,  the  court  does  assume  a  jurisdiction  of  necessity  so  far  as  they 
are  to  be  considered  as  trustees  of  that  revenue. 'Vm)  <«  There  are  two 
sorts  of  authorities,"  said  Lord  Hardwicke,  ''  one  as  to  the  management 
of  the  estate  and  revenue,  the  other  as  to  the  management  and  govern- 
ment of  the  house.  In  the  latter  the  governors  are  absolute,  and  not 
controllable  by  the  Court  of  Chancery;  but  so  far  as  relates  to  the 
estates  of  the  charity,  they  are  subject  and  accountable  to  this  court."(4;) 

Upon  the  ground  of  this  distinction  between  the  visitatorial  power  and 

{q)  Eden  v.  Foster,  2  P.  W.  326,  resolved;  Attorney-General  v.  Gaunt,  3  Sw.  148. 

(r)  See  Philips  v.  Bury,  Skin.  478  ;  Attorney-General  v.  Crook,  1  Keen,  126; 
Attorney-General  v.  Archbishop  of  York,  2  R.  &  M.  468 ;  In  re  Birmingham  School, 
Glib.  Eq.  Rep.  180,  181. 

(s)  Green  v.  Rutherforth,  1  Ves.  469,  per  Sir  J.  Strange;  id.  4T2,  per  Lord 
Hardwicke. 

(C)  St.  John's  College,  Cambridge,  v.  Todington,  1  Burr.  200,  per  Lord  Mans- 
field;  Attorney-General  v.  Locke,  3  Atk.  165,  per  Lord  Hardwicke;  Attorney- 
General  V.  The  Master  of  Catharine  Hall,  Cambridge,  Jac.  392,  \)cv  Lord  Eldon. 

{u)  Attorney  General  v.  The  Governors  of  the  Foundling  Hospital,  2  Ves.  jun. 
47.  But  note.  Chief  Baron  Richards  once  observed,  he  had  been  of  counsel  in 
the  Foundling  Hospital  case,  and  he  remembered  some  of  the  first  men  of  the 
bar  were  not  satisfied  with  the  decision.     In  re  Chertsey  Market,  6  Price,  272. 

{v)  Attorney-General  v.  Locke,  3  Atk.  165 ;  and  see  upon  this  subject  E.x  parte 
Berkhampstead  Free  School,  2  V.  &  B.  138 ;  The  Poor  of  Chelmsford  v.  Mildmay, 
Duke,  83;  Attorney-General  v.  Earl  of  Clarendon,  17  Yes.  499  ;  Eden  v.  Foster, 


418 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


tte  management  of  the  revenue,  an  information  for  the  removal  of  go- 
vernors or  other  corporators,  as  having  been  irregularly  appointed,  would 
be  dismissed  with  costs ;(«;)  but  wherever  the  administration  of  the  j>ro- 
perti/  by  the  governors  can  be  shown  to  have  a  tendency  to  pervert  the 
end  of  the  institution,  the  court  will  immediately  interpose,  and  put  a 
stop  to  such  wrongful  application. (a;) 

*An  estate  newly  bestowed  upon  an  old  corporation  is  not  to 
[*494]  ^^  regarded  in  the  same  light  as  property  with  which  the  charity 
was  originally  endowed.  The  visitatorial  power  is  forum  domesticum — 
the  private  jurisdiction  of  the  founder;  and  the  new  gift  will  not  be 
made  subject  to  it,  unless  the  will  of  the  donor  be  either  actually  ex- 
pressed to  that  effect,  or  is  to  be  collected  by  necessary  implication.(?/) 
If  a  legal  or  equitable  interest  be  given  to  a  body  corporate,  and  no  spe- 
cial purpose  be  declared,  the  donor  has  plainly  implied  that  the  estate 
shall  be  under  the  general  statutes  and  rules  of  the  society,  and  be  regu- 
lated in  the  same  manner  as  the  rest  of  their  property  :(.~)  but  if  a  par- 
ticular and  special  trust  be  annexed  to  the  gift,  that  excludes  the  visi- 
tatorial power  of  the  original  founder;  and  the  court,  viewing  the 
corporation  in  the  light  of  an  ordinary  trustee,  will  determine  all  the 
same  questions  as  would  have  fallen  under  its  jurisdiction  had  the  ad- 
ministration of  the  fund  been  intrusted  to  the  hands  of  individuals. 

Thus,  in  Grreen  v.  Kutherforth,(a)  an  advowson  was  devised  to  St. 
John's  College,  Cambridge,  upon  trust,  when  the  church  should  become 
void,  to  present  "the  senior  divine  then  fellow  of  the  College."  A  dis- 
pute arose  as  to  the  true  interpretation  of  the  words ;  and  had  the  direc- 
tion been  contained  in  the  statutes  of  the  college,  the  construction  would 
have  fallen  under  the  visitatorial  province ;  but  as  the  property  was  a 
new  donation,  it  was  held  the  question  was  determinable  in  the  forum 
of  the  Court  of  Chancery.  "  A  private  person,"  it  was  said,  "  would 
have  been  compellable  to  execute  the  will,  and,  considered  as  a  trust,  it 
made  no  difference  who  were  the  trustees.  Though  here  they  were  a 
collegiate  body  whose  founder  had  given  a  visitor  to  superintend  his  own 
lounty,  yet,  as  regarded  one  claiming  under  a  separate  benefactor,  the 
court  would  look  on  them  as  trustees,  and  would  compel  them  to  execute 
the  intent  under  the  direction  of  the  court,  (i)     The  visitor,  whose  judg- 

2  P.  W.  326  ;  Attorney-General  v.  Dixie,  13  Yes.  533,  539 ;  Attorney-General  v. 
Corporation  of  Bedford,  2  Yes.  505  ;  5  Sim.  578  ;  Attorney-General  v.  Browne's 
Hospital,  17  Sim.  137;  Attorney-General  v.  Governors  of  Dedham  Grammar 
School,  3  Jur.  N.  S.  325. 

(w)  Attorney-General  v.  Earl  of  Clarendon,  17  Yes.  491,  see  498;  Whiston  v. 
Dean  &  Chapter  of  Rochester,  7  Hare,  532 ;  Attorney-General  v.  Dixie,  13  Yes. 
519 ;  Attorney-General  v.  Middleton,  2  Yes.  327,  see  330  ;  Attorney-General  v. 
Dulwich  College,  4  Beav.  255  ;  Attorney-General  v.  JIagdalen  College,  Oxford,  10 
Beav.  402  ;  Attorney-General  v.  Corporation  of  Bedford,  id.  505 ;  In  re  Bedford 
Charity,  5  Sim.  578. 

(x)  See  Attorney-General  v.  St.  Cross  Hospital,  17  Beav.  435 ;  Attorney-Gene- 
ral V.  The  Governors  of  the  Foundling  Hospital,  2  Yes.  jun.  48  ;  Attorney-General 
v.  Earl  of  Clarendon,  17  Yes.  499. 

(y)  Green  v.  Rutherforth,  1  Yes.  472,  per  Lord  Hardwicke. 

(z)  Id.  473,  per  eundem ;  Ex  parte  Inge,  2  R.  &  M.  596,  per  Lord  Brougham ; 
Attorney-General  v.  Clare  Hall,  3  Atk.  675,  per  Lord  Hardwicke. 

(a)   1  Yes.  462.  (6)   1  Yes.  468,  473. 


DUTIES    OF    TRUSTEES    OF    CHARITIES.  419 

ment  must  be  founded  on  the  statutes,  could  *not  execute  the  (-:}:4ncn 
trusts  of  the  will,  for  that  would  be  departing  from  the  statutes;  >-  '  -J 
and  the  adhering  to  the  statutes  would  be  adding  further  circumstances 
to  the  trust  than  the  testator  prescribed,  and  making  it  the  founder's 
will,  and  not  the  testator's/ '(t) 

But  even  the  visitatorial  power  may,  under  particular  circumstances 
and  in  a  special  manner,  be  exercised  by  the  lord  chancellor ;  for  the 
crown  may  be  visitor  by  the  terms  of  the  foundation,  and  if  the  heir  of  the 
founder  cannot  be  discovered, (t?)  or  become  lunatic,(e)  the  visitatorial 
power,  rather  than  the  corporation  should  not  be  visited  at  all,  will  result 
to  the  crown.  In  civil  corporations  the  king  is  visitor  through  the  Court 
of  Queen's  Bench  ;  for  corporate  bodies  which  respect  the  public  police 
of  the  country  and  the  administration  of  justice,  are  necessarily  better 
regulated  under  the  superintendence  of  a  court  of  law :  but  as  regards 
eleemosynary  corporations  the  king's  visitatorial  power  has  been  com- 
mitted to  the  lord  chancellor,  as  in  matters  of  charity  the  more  appro- 
priate supervisor. (/)  And  the  mode  of  application  to  the  lord  chan- 
cellor in  these  cases  is  by  petition  to  the  Great  Seal.(y) 

We  proceed  to  the  consideration  of  the  duties  of  trustees  of  charities. 

It  is  of  course  imposed  upon  the  trustees  whether  individuals  or  a  cor- 
poration, not  to  convert  the  charity  fund  to  other  uses  than  according  to 
the  intent  of  the  founder  or  donor ;  so  long  as  those  uses  are  capable  of 
execution. (A)  Thus  if  the  gift  be  to  find  a  preacher  in  Dale,  it  would 
be  a  breach  of  trust  to  provide  one  in  Sale  ;  or  if  it  be  to  find  a  preacher, 
and  the  trustees  apply  it  to  the  poor  or  to  some  other  purpose ;(Q  r*  (q,>-i 
*or  if  the  trust  be  for  the  poor  of  0.,  and  the  trustees  extend  it  L  '  J 
to  other  parishes; (A  or  if  the  trust  be  to  repair  a  chapel,  and  the  rents 
be  mixed  up  with  the  poor-i'ate  for  parochial  purposes  ;(m)  or  if  a  fund 
be  raised  for  erecting  an  hospital,  and  it  be  diverted  to  lighting,  paving, 
and  cleansing  the  town.(«) 

A  chapel  was  granted  to  the  trustees  of  a  school  for  the  use  and  benefit 
of  the  said  school,  and  though  the  inhabitants  of  the  hamlet  had  been 
long  accustomed  to  attend  divine  service  in  the  chapel,  it  was  held  that, 
as  the  chapel  was  for  the  exclusive  benefit  of  the  school,  the  trustees  had 

(c)  1  Ves.  469. 

{d)  Ex  parte  Wrangham,  2  Ves.  jun.  609  ;  Attorney-General  v.  Earl  of  Claren- 
don, IV  Ves.  498,  per  Sir  W.  Grant;  Attorney-General  v.  Black,  11  Ves.  191; 
Case  of  Queen's  College,  Cambridge,  Jac.  1. 

(e)  Attorney-General  v.  Dixie,  13  Ves.  519,  see  533. 

(/)  King  V.  St.  Catharine's  Hall,  4  T.  R,  233,  see  244 ;  and  see  Ex  parte  Wrang- 
ham, 2  Ves.  jun.  619. 

{g)  See  the  cases  cited  in  notes  {d)  and  (<?) ;  and  Ex  parte  luge,  2  R.  &  M.  594  ; 
Re  Queen's  College,  Cambridge,  5  Russ.  64 ;  Re  University  College,  Oxford,  2 
Phil.  521. 

(A)  See  Attorney-General  v.  Sherborne  School,  18  Beav.  256. 

(t)  Duke,  116;  Attorney-General  v.  Newbury  Corporation,  C.  P.  Coop.  Cases, 
1837-38,  72  ;  Attorney-General  v.  Goldsmiths'  Company,  ib.  292  ;  and  see  Wive- 
lescom's  case,  Duke,  94. 

[l)  Attorney-General  v.  Brandreth,  1  Y.  &  C.  Ch.  Re.  200. 

\ra)  Attorney-General  v.  Vivian,  1  Russ.  226,  see  237. 

\n)  Attorney-General  v.  Kell,  2  Beav.  575. 


420       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

no  power  to  apply  tlie  revenues  of  the  charity  towards  enlarging  the 
chapel  for  the  better  accommodation  of  the  inhabitants. (o) 

The  trustees  for  maintaining  a  chapel  had  pulled  down  the  edifice, 
converted  the  burial-ground  to  profane  purposes,  carried  the  bell  to  the 
market-place,  put  the  pews  in  the  parish  church,  and  employed  the  stones 
of  the  chapel  for  repairing  a  bridge.  Sir  T.  Plumer  said,  "  It  was  an 
enormous  breach  of  trust,  and  such  as  could  not  have  been  expected  in 
a  christian  country  f  and  directed  an  inquiry  what  emoluments  had 
come  to  the  hands  of  the  trustees  on  account  of  the  breach  of  trust,  and 
what  would  be  the  expense  of  restoring  the  chapel  to  the  state  in  which 
it  stood  at  the  time  of  its  destruction. (79) 

A  fund  in  aid  and  relief  of  "  poor  citizens  who  often  were  grievously 
burdened  by  the  imposts  and  taxes  of  the  city,"  was  held  not  to  be  appli- 
cable to  the  payment  of  rates  and  other  expenses  of  the  city  that  would 
otherwise  have  been  raised  by  public  levies  and  impositions,  nor  to  be 
distributable  to  such  of  the  poor  as  received  parish  relief,  for  that  would 
be  so  much  in  aid  of  the  rate-payers  ;  but  ought  to  have  been  adminis- 
tered for  the  exclusive  benefit  of  the  poor,  and  should  therefore  have 
been  confined  to  such  of  the  poor  as  were  not  supported  by  the  parish. (5) 
*If  land  or  money  be  given  for  maintaining  « the  worship  of 
L*4y7 J  Q.Q(j^>j  ^^^  nothing  more  be  said,  the  court  will  execute  the  trust 
in  favour  of  the  established  form  of  religion.  But  if  it  be  clearly 
expressed  upon  the  deed  or  will  that  the  purpose  of  the  settlor  is  to  pro- 
mote the  maintenance  of  dissenting  doctrines,  the  court,  provided  such 
doctrines  be  not  contrary  to  law,  will  execute  the  intention. (r)  And 
where  a  fund  is  raised  for  the  purpose  of  founding  a  chapel  (or  indeed 
any  other  charity,)  and  the  contributors  are  so  numerous  as  to  preclude 
the  possibility  of  their  all  concurring  in  any  instrument  declaring  the 
trust,  and  such  a  declaration  of  trust  is  made  by  the  persons  in  whom 
the  property  is  vested  at  or  about  the  time  when  the  sums  have  been 
raised,  that  declaration  may  reasonably  be  taken  prima /acie  as  the  true 
exposition  of  the  minds  of  the  contributors. (s) 

Where  an  institution  exists  for  the  purpose  of  religious  worship,  and 
it  cannot  be  discovered  from  the  instrument  declaring  the  trust  what 
form  or  species  of  religious  worship  was  in  the  intention  of  the  settlors, 
the  court  will  then  inquire  what  has  been  the  usage  of  the  congregation  ; 
and  if  such  usage  do  not  contravene  public  policy  will  be  guided  by  it  as 
evidence  of  the  intention  in  the  administration  of  the  trust.  And  by  a 
recent  act,  if  the  instrument  of  trust  do  not  define  the  religious  doctrines, 
twenty-five  years'  usage  immediately  preceding  any  suit  is  made  conclu- 
sive evidence  thereof/^)     But  if  the  purpose  of  the  settlors  appear  clearly 

(0)  Attorney-General  v.  Earl  of  Mansfield,  2  Russ.  501. 

Xp)  Ex  parte  Greenhouse,  1  Mad.  92  ;  reversed  on  technical  ground,  1  Bl.  N. 
R.  17. 

(g)  Attorney-General  y.  Corporation  of  Exeter,  2  Russ.  45  ;  S.  C.  3  Russ.  395  ; 
and  see  Attorney-General  v.  Bovill,  1  Phil.  T62  ;  Attorney-General  v.  Blizard,  21 
Beav.  233. 

(r)  Attorney-General  v.  Pearson,  3  Mer.  409.  per  Lord  Eldon ;  see  S.  C.  7 
Sim.  290. 

(s)  Attorney-General  v.  Clapham,  4  De  Gex,  M.  &  G.  626. 

\t)  Y  &  8  Yict.  c.  45,  s.  2. 


DUTIES    OF    TRUSTEES    OF    CHARITIES.  421 

upon  the  instrument,  the  court,  in  that  case,  though  the  usage  of  the 
cono'regation  may  have  run  in  a  different  channel,  cannot  change  the 
nature  of  the  original  institution  :  it  is  not  competent  for  the  majority  of 
the  congregation,  or  for  the  managers  of  the  property,  to  say,  "  We  have 
altered  our  opinions  :  the  chapel  in  future  shall  be  for  the  benefit  of  per- 
sons of  the  same  persuasion  as  ourselves. "(m) 

*If  the  deed  of  endowment  neither  provide  for  the  succession  r^^gg-i 
of  trustees  nor  the  election  of  the  minister,  an  inquiry  will  be  L  J 
directed,  who,  according  to  the  nature  of  the  establishment,  are  entitled 
to  propose  trustees,  and  to  elect  the  minister  ;(t')  and  if  the  election  of 
the  minister  properly  belong  to  the  congregation,  the  majority  is  for  that 
purpose  the  congregation. (it)  The  appointment  of  the  minister  cannot, 
in  such  a  case,  belong  to  the  heir  of  the  surviving  trustee,  who  may  not 
be  of  the  same  persuasion,  but,  it  might  happen,  a  Roman  Catholic  or 
Jew.(.):) 

A  minister  in  possession  of  a  meeting-house  is  tenant  at  will  to  the 
trustees,  and  his  estate  is  determinable  by  demand  of  possession  without 
any  previous  notice. (^)  But  this  merely  tries  the  legal  right  without 
affecting  the  question  whether  in  equity  the  minister  was  properly  de- 
prived,(,:;)  and  if  the  minister  be  in  possession,  and  preaching  the  doc- 
trines that  were  intended  by  the  founders,  it  is  the  practice  of  a  court  of 
equity  to  continue  him  until  the  case  can  be  heard,  whether  he  was  duly 
elected  or  not  (for  the  first  point  is  to  have  the  service  performed)  and 
the  court  will  pay  him  his  salary. (a) 

It  is  the  policy  of  the  established  church  by  giving  the  minister  an 
estate  for  life  in  his  ofiice,  to  render  him  in  some  degree  independent  of 
the  congregation ;  but  if  it  be  the  general  usage  amongst  any  particular 
class  of  dissenters  to  appoint  their  ministers  for  limited  periods,  or  to 
make  them  removable  at  pleasure,  though  a  court  of  equity  might  not 
struggle  hard  in  support  of  such  a  plan,  there  is  no  principle  upon  which 
the  court  would  not  be  bound  to  give  it  effect.(i) 

To  every  corporation  there  belongs  of  common  right  the  power  of 
establishing  hyc-laws  for  the  government  of  their  own  *body ;  r^^gg-i 
but  this  privilege  cannot  authorize  the  enactment  of  any  rules  or  L  J 
regulations  that  would  tend  to  pervert  or  destroy  the  directions  of  the 
original  founder  and  the  objects  of  the  charity.(c)  And  so  a  clause  in 
a  deed  investing  the  trustees,  or  the  major  part  of  them,  with  the  power 
of  making  orders  from  time  to  time  upon  matters  relating  to  a  meeting- 

(m)  S.  C.  3  Mer.  400,  per  Lord  Eldon  ;  Foley  v.  Wontner,  2  Jac.  &  Walk.  24T, 
per  eundem ;  Craigdiillie  v.  Aikman,  1  Dow's  P.  C.  1  ;  Milligan  v.  Mitchell,  3  M.  & 
C.  12  ;  Broom  v.  Summers,  11  Sim.  353  ;  Attorney-General  v.  Murdoch,  7  Hare, 
445  ;   1  De  Gex,  M.  &  G.  86;  Attorney-General  v.  Munro,  2  De  Gex  &  Sm.  122. 

{v)  Davis  V.  Jenkins,  3  V.  &  B.  151,  see  159  ;  and  see  Leslie  v.  Biniie,  2  Russ.  114. 

{w)  Davis  v.  Jenkins,  3  V.  &  B.  155;  and  see  Leslie  v.  Birnie,  ubi  supra. 

(x)  Davis  v.  Jenkins,  3  V.  &  B.  154. 

[y]  Doe  v.  Jones,  10  B.  &  Cr.  718  ;  Doe  v.  M'Kaeg,  10  B.  &  Cr.  721 ;  and  seo 
Brown  v.  Dawson,  12  Ad.  &  Ell.  624. 

(z)  See  Doe  v.  Jones,  10  B.  &  Cr.  721. 

(a)  Foley  v.  Wontner,  2  Jac.  &  Walk,  247,  per  Lord  Eldon. 

(6)  Attorney-General  v.  Pearson,  3  Mer.  402,  403,  per  Lord  Eldon. 

(c)  Eden  v.  Foster.  2  P.  W.  327,  resolved. 


422       LEWIN  ox  THE  LAW  OF  TRUSTS,  ETC. 

house  would  uot  enable  tliem  to  convert  tlie  meeting-house,  whenever 
they  thought  proper,  into  a  meeting-house  of  a  different  description,  and 
for  teaching  diflFerent  doctrines  from  those  of  the  persons  who  founded 
it,  and  by  whom  it  was  to  be  attended. (c/) 

The  charity  funds  cannot  be  diverted  into  a  different  channel  without 
the  authority  of  an  act  of  parliament ;  and  this  may  now  be  obtained 
through  the  intervention  of  the  charity  commissioners,  who  are  em- 
powered to  approve,  provisionally,  of  a  scheme  varying  from  the  original 
endowment  and  submit  it  to  parliament. (e)  Until  the  act  referred  to, 
trustees,  before  applying  to  the  legislature,  were  in  the  habit  of  procur- 
ing the  sanction  of  the  Court  of  Chancery ;  for  if  they  took  such  a  step 
upon  the  mere  suggestion  of  their  own  minds,  and  failed  in  obtaining 
the  contemplated  act,  they  were  not  allowed  the  costs  and  expenses  in- 
curred in  the  proceeding ;(/)  but  if  the  application  to  parliament  was 
attended  with  success,  the  trustees  were  then  allowed  their  costs,  though 
the  sanction  of  the  lord  chancellor  had  not  been  previously  obtained  ; 
for  the  court  could  not  with  propriety  pronounce  those  measures  t®  be 
imprudent  which  the  legislature  itself  had  enacted  as  prudent. (t;') 

But  the  management  of  the  trust  may  contravene  the  letter  of  the 
founder's  will,  and  yet,  on  a  favourable  construction,  be  conformable  to 
the  real  intention. 

P^.^^-,  It  was  the  opinion  of  Lord  Eldon(7;)  and  Sir  T.  Plumer,(i') 
L'^^'^J  *that  if  the  wish  of  the  founder  were  to  establish  a  free  <jravi- 
mar  school,  the  chancellor,  though  he  felt  perfectly  convinced  that  a  free 
grammar  school,  that  is,  a  school  for  teaching  the  learned  languages, 
could  be  of  little  or  no  use,  would  yet  be  bound  to  apply  the  revenue  as 
the  donor  had  directed,  and  could  not  substitute  a  school  for  teaching 
English  and  writing  and  arithmetic.  <'The  duty  of  the  court,"  said 
Lord  Eldon,  "  is  to  enforce  the  trusts  as  they  stand  :  the  founder  was 
the  judge  how  far  his  institution  was  likely  to  be  useful  to  the  public."(A:) 
But  it  has  since  been  held  by  Lord  Lyndhurst,(^  Sir  John  Leach,(wi) 
Lord  Langdale,(H)  and  Lord  Cottenham,(o)  that  the  court  has  jurisdic- 
tion to  extend  the  application  of  the  charity  fund  to  purposes  beyond  the 
literal  intention,  and  that  v:riting  and  arithmetic  may  be  well  introduced 
into  a  scheme  for  the  establishment  or  better  regulation  of  a  free  gram- 
mar school.  And  this  may  of  course  be  done  in  the  case  not  of  a  free 
grammar  school  but  of  a/?-ee  school.(^p) 

(d)  Attorney-General  v.  Pearson,  3  Mer.  411,  per  Lord  Eldon.. 

(e)  16  &  17  Yict.  c.  137,  ss.  54-60. 

(/)  Attorney-General  v.  Earl  of  Mansfield,  2  Russ.  519,  per  Lord  Eldon. 

(g)   lb.  per  eundem. 

(A)  Attorney-General  v.  Whiteley,  11  Yes.  241;  Attorney-General  v.  Earl  of 
Mansfield,  2  Russ.  501. 

(i)  Attorney-General  v.  Dean  of  Christchurch,  Jac.  474. 

{k)  Attorney-General  v.  Earl  of  Mansfield,  2  Russ.  521. 

(l)  Attorney-General  y.  Haberdashers'  Company,  3  Russ.  530. 

(to)  Attorney-General  v.  Dixie,  2  M.  &  K.  342  ;  Attorney-General  v.  Gascoigne, 
id.  652. 

(n)  Attorney-General  v.  Caius  College,  2  Keen,  150;  Attorney-General  v.  Lady- 
man,  C.  P.  Coop.  Cases,  1837-38,  180. 

(o)  Attorney-General  v.  Stamford,  1  Phil.  745. 

Ip)  Attorney- General  v.  Jackson,  2  Keen,  541. 


DUTIES    OF    TRUSTEES    OF    CHARITIES.  423 

Now  by  the  3  &  4  Vict.  c.  77,  s.  1,  it  is  enacted  that  whenever  any 
question  may  come  under  consideration,  in  any  of  her  majesty's  courts 
of  equity,  concerning  the  system  of  education  to  be  established  in  any 
grammar  school,  or  the  right  of  admission  into  the  same,  it  shall  be 
lawful  for  the  court  to  make  such  decrees  or  orders  as  to  the  said  court 
shall  seem  expedient  for  extending  the  system  of  education  to  other 
useful  branches  of  literature  and  science,  in  addition  to  or  (subject  to  the 
provisions  thereinafter  contained)  in  lieu  of  the  Greek  and  Latin  lan- 
guages, or  such  other  instruction  as  may  be  required  by  the  terms  of  the 
foundation,  or  the  existing  statutes. 

By  the  13th  section,  the  visitors  of  any  school  are  enabled  to  require 
from  the  master  a  return  of  the  state  thereof,  of  the  books  used  therein, 
and  of  such  other  particulars  as  they  may  think  proper ;  and  also,  to  order 
such  examination  of  *thc  scholars  attending  the  same  as  may  seem  r^-A-i-i 
expedient.  And  by  the  14th,  15th  and  IGth  sections,  the  court  L  J 
is  empowered,  upon  proper  occasions,  to  enlarge  the  existing,  or  to  create 
new  visitatorial  powers,  and  to  appoint,  when  necessary,  a  provisional 
visitor. 

By  the  17th  section  it  is  enacted  that  it  shall  be  lawful  for  the  Court 
of  Chancery  (upon  application  by  petition  under  the  21st  section,)  to 
empower  the  person  or  persons  having  powers  of  visitation  in  respect  of 
the  discipline  of  any  grammar  school,  or  who  shall  be  specially  appointed 
to  exercise  the  same,  under  the  said  act,  and  the  governors,  or  either  of 
them,  after  such  inquiries,  and  by  such  mode  of  proceeding  as  the  court 
may  direct,  to  remove  any  master  of  any  grammar  school  who  has  been 
negligent  in  the  discharge  of  his  duties,  or  who  is  unfit  or  incompetent 
to  discharge  them  properly  or  efiiciently,  either  from  immoral  conduct, 
incapacity,  age,  or  from  any  other  infirmity  or  cause  whatsoever,  and  by 
a  subsequent  section,  provision  is  made  for  the  ejectment  of  the  master 
by  a  summary  process  from  the  premises  in  his  occupation. 

Where  trustees  were  directed  to  apply  the  rents  "  towards  the  neces- 
sary y?«f?/Hy  a  master  and  for  the  pains  of  such  master,"  and  the  trustees 
applied  part  of  the  revenue  towards  rchuilding  and  repairing  the  school- 
room and  school-house,  it  was  held  to  be  a  good  pursuance  of  the  trust, 
because  a  school-room  and  house  were  necessary,  and  if  these  were  not 
provided  by  the  trustees,  they  must  have  been  provided  by  the  master 
himself,  and  so  it  was  in  effect  applied  for  the  pains  of  the  master. ((^) 

So  a  trust  "for  the  relief  of  the  pejor"  has  been  construed  to  authorize 
an  application  of  the  funds  to  the  building  of  a  schooUtouse,  and  the  edu- 
cation  of  the  poor  of  the  parish. (/•) 

So  an  estate  had  been  given  to  trustees  for  the  repair  of  a  church  and 
chapel  of  ease  thereto  belonging,  and,  the  parish  having  taken  down  the 
chapel  to  erect  a  new  one  on  a  difierent  site,  it  was  determined  that  the 
trustees  had  not  exceeded  the  *line  of  their  duty  in  expending  |-^.„.,-. 
the  accumulated  rents  upon  the  rehuildinj  of  the  chapel;  but  it  L  "J 
was  held  the  rents  only,  and  not  the  corp)us  of  the  estate,  could  be  so 

{q)  Attorney-General  v.  Mayor  of  Stamford,  2  S\v.  592. 
(r)  Wilkinson  v.  Malin,  2  Tyr.  544,  see  570. 


424       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

applied ;  and  the  court  had  great  doubts  whether  any  thing  could  be  laid 
out  upon  i\\Q  fitting-np  of  the  chapel. (s) 

And  where  the  direction  of  the  founder  was  that  the  master  of  a  school 
should  receive  50?.  a  year,  and  the  usher  30/f.,  and  the  trustees  had  raised 
the  salaries  respectively  to  80Z.  and  60?.,  as  the  will  did  not  contain  any 
prohibition  against  increasing  the  salaries,  and  it  could  not  be  supposed 
that  the  trustees  were  not  under  any  circumstances  to  alter  the  amount, 
the  court  refused  to  compel  the  trustees  to  refund  the  augmentations. (<) 
And,  vice  verm,  if  a  fund  be  given,  not  for  purposes  of  individual 
benefit,  but  for  the  discharge  of  certain  duties,  as  for  the  support  of  a 
schoolmaster,  and  the  fund  increase  to  such  an  extent  as  to  yield  more 
than  a  reasonable  compensation  for  the  duties  to  be  performed,  the  court 
will  not  allow  the  surplus  to  be  expended  unnecessarily,  but  will  order  it 
to  be  applied  for  the  promotion  of  some  other  charitable  purpose. («) 

Legacies  had  been  left  by  several  different  testators  (between  the  years 
1545  and  1666)  for  the  purpose  of  being  lent  out  in  sums  varying  from 
hi.  to  200?.  without  interest;  and  Sir  J.  Leach  was  of  opinion,  that, 
regard  being  had  to  the  alteration  in  the  value  of  money,  it  was  not  in- 
consistent with  the  intention  of  the  testators  to  raise  the  loans  to  sums 
varying  from  100?.  to  500?.(i;) 

It  need  scarcely  be  remarked  that  a  trustee  would  be  guilty  of  a  gross 
breach  of  trust,  should  he  keep  the  charity  fund  in  his  hands,  and  not 
apply  it,  as  it  becomes  payable,  to  the  objects  of  the  trust. (u') 

It  is  a  general  rule,  that  trustees  of  charities  have  no  ^authority 
L  J  to  make  an  absolute  disposition  of  the  charity  estate  :  they  could 
not,  for  instance,  part  with  lands  to  a  purchaser,  and  substitute  instead 
the  reservation  of  a  rent.{x)  And  as  the  trustees  may  not  alien  abso- 
lutely, so  they  may  not  accomplish  the  same  end  indirectly  by  demising 
for  long  terms,  as  for  999  years  ;(^)  or  for  terms  of  ordinary  duration, 
with  covenants  for  perpetual  renewal  ;(2)  or  by  granting  reversionary 
terms,  (a) 

But  there  is  no  positive  rule  that  in  no  instance  shall  an  absolute  dis- 
position be  made,  for  then  the  court  itself  could  not  authorize  such  an 
act — a  jurisdiction  which,  it  is  acknowledged,  has  from  time  to  time 
been  exercised  upon  special  cases  made.  '<  I  do  not  doubt,"  observed 
Sir  J.  Wigram,  '^  the  existence  of  this  power  in  the  court:  the  trustees 
have  the  power  to  sell  at  law,  they  can  convey  the  legal  estate,  but  it  is 
only  a  court  of  equity  that  can  resell  the  property,  and  if  that  court 

(«)  Attorney-General  v.  Foyster,  1  Anst.  116. 

\t)  Attorney-General  v.  Dean  of  Christchurch,  2  Russ.  321. 

(m)  Attorney-General  v.  Master  of  Brentford  School,  1  M.  &  K.  3T6,  see  394. 

[v)  Attorney-General  v.  Mercers'  Company,  2  M.  &  K.  654 ;  and  see  Attorney- 
General  V.  Holland,  2  Y.  &  C.  683 ;  Morden  College  case,  cited  ib.  701,  702. 

{w)  Duke,  116. 

{x)  Attorney-General  v.  Kerr,  2  Bear.  420  ;  Blackston  v.  Hemsworth  Hospital, 
Duke,  49 ;  Attorney-General  t.  Brettingham,  3  Beav.  91  ;  and  see  Attorney- 
General  V.  Buller,  Jac.  412  ;  Attorney-General  v.  Magdalen  College,  18  Beav.  223. 

{y)  Attorney-General  v.  Green,  6  Yes.  452  ;  Attorney-General  v.  Pargeter,  6 
Beav.  150. 

{z)  Lydiatt  v.  Foach,  2  Yern.  410  ;  Attorney-General  v.  Brooke,  18  Yes.  326. 

(a)  See  Attorney-General  v.  Kerr,  2  Beav.  420. 


DUTIES    OF    TRUSTEES    OF    CHARITIES.  425 

should  sanction  a  sale  it  would  be  bound  to  protect  tlie  purclaaser.'V/jj 
The  true  principle  is,  that  an  absolute  disposition  is  then  only  to  be  con- 
sidered a  breach  of  trust  when  the  proceeding  is  inconsistent  with  a  pro- 
vident administration  of  the  estate  for  the  benefit  of  the  charity. (c)  x\nd 
the  transaction  will  be  strongly  assumed  to  be  improvident  as  against  a 
purchaser  until  he  has  established  the  contrary,  (r/)  A  house  which  had 
formerly  produced  a  large  income  by  being  let  in  apartments  had  after- 
wards fallen  into  a  state  of  dilapidation  and  become  unpi-oductive  :  the 
charity  had  no  funds  to  rebuild,  but  the  materials  and  site  were  of  con- 
siderable value.  The  *master  having  reported  that  it  would  be  r:icf:n^-i 
for  the  advantage  of  the  charity  to  dispose  of  the  house.  Sir  W.  L  J 
Grant,  on  the  authority  of  a  precedent  which  was  produced  to  him, 
directed  a  sale.(e) 

Now  under  the  provisions  of  the  recent  acts  the  commissioners  of 
charities  are  empowered  on  application  made  to  them  to  authorize  the 
grant  by  charity  trustees  of  building,  repairing,  improving,  or  other 
leases,  and  the  working  of  mines,  and  the  sale  or  exchange  of  any  part 
of  the  charity  property,(/)  and  the  trustees  are  restricted  from  any  sale, 
mortgage  or  beneficial  leases,  vt  ithout  the  sanction  of  the  commissioners,(^) 
and  moneys  arising  from  sales  and  exchanges  may  be  laid  out  with  the 
consent  of  the  commissioners  in  the  purchase  of  other  lands  without  a 
license  in  mortmain. (7i) 

Where  there  are  accumulations  from  a  charity  estate,  the  court,  on 
application  to  it  for  directions,  will  not  as  a  general  rule  sanction  an 
investment  on  land  contrary  to  the  spirit  of  the  mortmain  act.(«)  ]iut 
there  is  nothing  illegal  in  such  an  investment,  if  accompanied  with  the 
formalities  required  by  the  act,  viz.  an  indenture  sealed  and  delivered 
in  the  presence  of  two  credible  witnesses,  and  inrolled  within  six  calendar 
months  from  the  execution  -yUc)  and  therefore  should  a  highly  beneficial 
purchase  ofi"er  itself,  the  trustees  themselves  would,  it  is  conceived,  run 
no  risk  in  so  investing  the  accumulations. (/)  Indeed,  the  court  itself 
has  made  such  an  order  where  the  purchase  of  the  land  was  not  the  main 
object,  but  incidental  to  a  general  scheme  as  for  the  enlargement  of  a 
school,  (m) 

Trustees  of  a  charity  may  lend  the  trust  fund  upon  a  mortgage  of  real 
estate,  though  a  legal  condition  is  expressly  reserved,  and  though  after 

(6)  Attorney-General  v.  Newark,  1  Hare,  400. 

(c)  See  Attorney-General  v.  Warren,  2  Sw.  302;  S.  C.  Wils.  411;  Attorney- 
General  v.  Hungerford,  8  Bl.  43T  ;  S.  C.  2  CI.  &  Fin.  357;  Attorney-General  v. 
Kerr,  2  Beav.  428  ;  Attorney-General  v.  South  Sea  Company,  4  ]?eav.  453  ;  Attor- 
ney-General V.  Newark,  1  Hare,  395  ;  Parke's  Charity,  12  Sim.  329  ;  Re  Suir  Is- 
land Female  Charity  School,  3  Jones  &  Lat.  171. 

((f)  Attorney-General  v.  Brettingham,  3  Beav.  91 ;  Re  Ashton  Charity,  22 
Beav.  288. 

[e)  Anon,  case,  cited  Attorney-General  v.  Warren,  2  Sw.  300,  302. 

(/)   16  &  17  Vict.  c.  137,  ss.  21,  24,  26 ;  18  &  19  Vict.  c.  124,  s.  32,  39. 

{g)   18  &  19  Vict.  c.  124,  s.  29.  {h)  18  &  19  Vict.  c.  124,  s.  35. 

(?)  Attorney-General  v.  Wilson,  2  Keen,  680. 

{k)  But  see  Attorney-General  v.  Day,  1  Ves.  222. 

(/)  See  Vaughan  v.  Farrer,  2  Ves.  188. 

(m)  Attorne3--General  v.  Mansfield,  14  Sim.  601 ;  Uonnor's  Trust,  V.  C.  Kinder- 
sley,  Mav  3,  1853. 


426 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


default  an  equity  of  redemption  arises  by  the  rules  of  equity.  The  Sta- 
tute  of  Mortmain  *(9  Geo.  2,  c.  36,)  which  avoids  conveyances 
[*505J  ^^  ^  charity  containing  any  reservation  or  condition  for  the  benefit 
of  the  grantor,  is  held  not  to  apply  to  such  a  case.(w)  But  of  course  care 
should'' be  taken  that  the  mortgage  be  by  indenture  attested  by  two 
witnesses,  and  inrolled.  The  court  itself,  its  attention  being  directed 
to  the  question,  has  authorized  the  trustees  of  a  charity  to  lend  on  mort- 
gage, (o) 

Governors  of  charities  cannot  grant  leases  to  or  in  trust  for  one  of 
themselves,  for  no  trustee  can  be  a  tenant  to  himself,  and  the  court  will 
charge  him  with  an  occupation  rack  rent.(p)  Where  two  trustee  were 
expressly  authorised  by  the  will  to  grant  a  lease  to  themselves,  or  either 
of  them,  with  the  consent  of  the  tenant  for  life,  and  one  of  thein  took  a 
lease  accordingly,  which  was  fair  and  proper,  but  it  was  found  in  effect 
that  the  relative  characters  of  trustee  and  lessee  were  inconsistent,  and 
led  to  inconveniences,  the  court  removed  the  trustee  at  the  instance  of 
the  cestuis  que  trust,  on  the  ground  of  the  repugnant  characters  of  trus- 
tee and  tenant ;  and  though  the  trustee  offered  to  surrender  the  lease, 
the  court  held  him  to  it,  and  dismissed  him  from  the  trust.  (5)  And 
trustees  should  be  cautious  how  they  grant  leases  to  their  own  relations, 
for  that  circumstance  is  calculated  to  excite  a  suspicion,  which,  if  con- 
firmed by  any  other  fact,  it  might  require  a  strong  case  to  remove. (r) 
So  a  lease  should  not  contain  any  covenant  for  the  private  advantage  of 
the  trustees  :  where  a  corporation  directed  the  insertion  of  a  covenant 
that  the  lessee  should  grind  at  the  corporation  mill,  in  a  suit  for  the 
establishment  of  the  charity  the  corporation  were,  for  this  instance  of 
misbehaviour,  disallowed  their  costs,  (s) 

Where  trustees  have  a  power  given  to  them  in  general  terms 
[  506J  -i,^^  gxnxii  leases,  it  is  said  they  may  take  fines  or  reserve  rents 
as,  according  to  the  circumstances  of  the  case,  may  be  most  beneficial  to 
the  charity.(/')  If  the  trust  estate  held  on  lease  increase  in  value  from 
the  outlay  of  the  tenant,  the  trustee  is  not  called  upon  immediately  to 
raise  the  tenant's  rent,  for  such  a  practice  would  obviously  prevent  any 
improvement  of  the  property.(«)  Nor  if  the  value  of  the  estate  increase 
from  the  rise  of  agricultural  produce  will  the  trustee  be  liable,  because 
he  neglects  for  a  few  months  to  raise  the  rent ;  but  if  he  wilfully  con- 
tinues the  old  rent  when  clearly  a  much  higher  can  be  obtained,  he  may 
be  held  responsible. (v) 

In  granting  leases  of  charity  lands  care  must  be  taken  that  the  lease 

(n)  Doe  d.  Graham  v.  Hawkins,  2  Q.  B.  Rep.  212. 

(0)  This  -was  done  by  M.  R.  in  Att.-Gen.  v.  Gibson  ;  Ex  parte  Lushington  ;  Re 
Lady  Prior's  Charity,  July  21,  1853.  The  mortgage  was  for  50,000^.  upon  an  estate 
in  Northamptonshire. 

{p)  Attorney-General  v.  Dixie,  13  Ves.  519,  see  534:  Attorney-General  v.  Earl 
of  Clarendon,  Iv  Ves.  491,  see  500.       {q)  Passingham  v.  Sherborne,  9  Beav.  424. 

(r)  Ferraby  v.  Hobson,  2  Phill.  261,  per  Lord  Cottenham ;  and  see  Ex  parte 
Skinner,  2  Mer.  457. 

is)  Attorney-General  v.  Mayor  of  Stamford,  2  Sw.  592,  593. 
t)  Attorney-General  v.  Mayor  of  Stamford,  2  Sw.  592. 
u)  Ferraby  v.  Hobson,  2  Phill.  258,  per  Lord  Cottenham. 
v)  See  Ferraby  v.  Hobson,  2  Phill.  255. 


DUTIES    or    TRUSTEES    OF    CHARITIES.  427 

be  for  an  adequate  consideration,  and,  if  this  be  not  observed,  the  court 
will  interfere  and  order  the  lease  to  be  cancelled,  and  with  the  lease  will 
also  cancel  the  covenants. (r/') 

The  lease  may  be  annulled  on  the  mere  ground  of  under  value  ;(a3)  but 
it  must  be  an  under-value  satisfactorily  proved  and  considerable  in 
amount :  it  is  not  enough  to  show  that  a  little  more  might  have  been 
got  for  the  estate,  than  has  been  actually  obtained  :  still  less  is  it  suffi- 
cient to  infer  the  under-lettiug  from  the  value  of  the  property  at  some 
subsequent  period. (y) 

Even  where  it  was  ordained  at  the  creation  of  the  trust,  that  no  lease 
should  be  made  for  above  twenty-one  years,  and  the  rent  should  not  he 
raised,  it  was  held  the  trustee  would  not  be  justified  in  granting  leases 
from  time  to  time  at  no  more  than  the  original  reservation.  Lord  Cowper 
said  ''  That  the  rent  should  not  be  raised  was  a  constitution  just  and 
charitable  for  the  encouragement  of  the  tenant  to  improve  the  estate, 
and  he  ought  to  find  a  benefit  by  it ;  and  the  hospital  *also  would  r^'n^j-i 
find  an  advantage  in  having  the  rent  well  secured  by  an  estate  of  L  -^ 
greater  value,  and  consequently  paid ;  but  the  rule  or  constitution  was 
not  to  be  followed  according  to  the  letter  that  no  more  rent  was  to  be 
taken  than  what  was  at  first  reserved,  but  as  the  times  altered  and  the 
price  of  provisions,  &c.,  increased,  so  the  rent  ought  to  be  raised  in  pro- 
portion, "(s) 

But,  in  considering  the  question  of  value  it  must  be  remembered  that 
the  case  of  a  charity  estate  is  one  in  which,  of  all  others,  the  securiti/  of 
the  rent  is  the  first  point  to  be  regarded,  and  therefore  the  inadequacy 
of  the  amount  reserved  is  less  a  badge  of  fraud  in  this  than  it  would  be 
in  almost  any  other  instance. (a)  And  Lord  Eldon  desired  it  might  not 
be  considered  to  be  his  opinion  that  a  tenant  who  had  got  a  lease  of 
charity  lands  at  too  low  a  rate  with  reference  to  the  actual  value  was 
therefore  to  be  turned  out,  if  it  appeared  he  had  himself  acted  fairly  and 
honestly.  The  only  ground  for  so  dealing  with  him  would  be  some 
evidence  or  presumption  of  collusion  or  corruption  of  motive  :  if,  for  in- 
stance the  tenant  happened  to  be  a  relation  of  the  trustee,  that  was  a 
circumstance  to  create  suspicion. (6) 

WTien  leases  are  set  aside  for  under-value  and  the  court  awards  a 
compensation  to  the  charity  for  the  loss  which  has  been  sustained  by  the 
charity  through  the  collusion  of  the  trustees  and  the  tenant,  the  burden 
will  fall  upon  the  trustees  or  the  tenant  according  to  the  circumstances 
of  the  transaction,  (c) 

(w)  Attorney-General  v.  Morgan,  2  Russ.  30G. 

(x)  East  V.  Ryal,  2  P.  W.  284;  Attorney-General  v.  Lord  Gower,  9  Mod.  224, 
see  229;  Attorney-General  v.  Magwood,  18  Ves.  315;  Attorney-General  v.  Dixie, 
13  Ves.  519;  Poor  of  Yervel  v.  Sutton,  Duke,  43;  Eltham  Parish  v.  "Warrcyn, 
Duke,  67  ;  Wright  v.  Newport  Pond  School,  Duke,  4(j;  Rowe  v.  Almsmen  of  Tavis- 
tock, Duke,  42  ;  Crouch  v.  Citizens  of  Worcester,  Duke,  33  ;  Attorney-General  v. 
Foord,  6  Beav.  288.  (y)  Attorney-General  v.  Cross,  3  Mer.  541,  per  Sir  W.  Grant. 

(z)  Watson  v.  Hinsworth  Hospital,  2  Vern.  596  ;  and  see  Lydiatt  v.  Foach,  id. 
410  ;  Attorney-General  v.  Master  of  Catharine  Hall,  Cambridge,  Jac.  381. 

(a)  Ex  parte  Skinner,  2  Mer.  457,  per  Lord  Eldon. 

(6)  Ex  parte  Skinner,  3  Mer.  457. 

(c)  See  Duke,  116  ;  Poor  of  Yervel  v.  Sutton,  id.  45 ;  Attorney-General  v.  Mayor 


428  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

A  lease  of  charity  lands  may  also  be  invalidated  on  tlie  ground  of  the 
unreasonable  extent  of  the  term. 

The  duration  of  the  lease  should  be  such  only  as  is  consistent  with 
the  fair  and  provident  management  of  the  estate. (cZ)  *It  would, 
L  ^^^J  therefore,  be  a  direct  violation  of  duty  to  grant  a  lease  for  one 
thousand  years,(e)  not  only  on  the  ground  before  noticed  that  such  a 
demise  would  in  effect  be  an  absolute  alienation,  but  also  on  the  principle 
that  no  private  proprietor  would  choose  to  debar  himself  from  profiting 
by  the  progressive  improvement  of  the  property.  Sir  Thomas  Plumer 
observed,  "  It  is  impossible  to  deny  that  such  a  lease  is  a  decisive  breach 
of  trust.  The  compensation  which  the  trustees  receive  may  be  adequate 
at  the  date  of  the  contract,  but  they  are  precluded  for  one  thousand  years 
from  any  advantage  of  increased  value.  It  is  true  they  are  secured  from 
diminution,  and  in  some  instances  to  guard  against  fluctuation  may  be 
as  much  the  interest  of  one  party  as  the  other ;  but  that  would  be  an 
answer  to  all  cases  in  which  the  trustees  have  made  an  alienation  at  a 
fixed  rent.  The  progress  of  events  and  the  depreciation  of  money  have 
shown  the  improvidence  of  such  agreements.  At  the  same  time,"  con- 
tinued his  honor,  "it  is  just  to  say,  that  these  principles  seem  not  to 
have  been  acted  upon  at  so  early  a  period  as  1670.  There  is  no  case 
produced  in  which  mere  improvidence,  inferred  solely  from  the  extent 
of  the  term,  was  held  sufficient  to  rescind  the  transaction.  In  many 
cases  in  Duke's  collection  the  court  acted  on  inadequacy  of  value,  in  none 
on  mere  extent  of  term.(/)  Where  the  alienation  appeared  at  the  time 
to  be  a  provident  administration,  the  prospective  possibility  that  it  might 
become  inadequate  does  not  appear,  at  that  period,  to  have  had  the  eftect 
which  it  does  at  present. "((/) 

JIusLcindrt/  or  farm  leases  should  be  granted  for  a  term  certain  not 
exceeding  twenty-one  years.{li)  But  neither  is  this  rule  to  be  taken  as 
absolutely  inflexible  ;  but  where  the  ^alienation  is  for  any  longer 
L  ^  ^J  period,  as  for  ninety-nine  years,  the  court  would  put  it  upon 
those  who  are  dealing  for  and  with  the  charity  estate  to  show  the 
reasonableness  of  such  a  transaction,  ior  prima  facie  it  is  unreasonable. 
There  is  no  instance  of  a  power  in  a  marriage  settlement  to  lease  for 
ninety-nine  years,  except  with  reference  to  very  particular  circumstances  : 
the  ordinary  husbandry  lease  is  for  twenty-one  years.(?') 

of  Stamford,  2  Sw.  592,  per  Cur.;  Attorney-General  v.  Dixie,  13  Ves.  540;  Rowe 
V.  Almsmen  of  Tavistock,  Duke,  42. 

{d)  See  Attorney-General  v.  Owen,  10  Ves.  560  ;  Attorney-General  v.  Brooke, 
18  Ves.  326 ;  Attorney-General  v.  Griffith,  13  Ves.  575. 

(e)  Attorney-General  v.  Green,  6  Ves.  452  ;  Attorney-General  v.  Cross,  3  Mer. 
540;  Attorney-General  v.  Dixie,  13  Ves.  531;  Attorney-General  v.  Brooke,  18 
Ves.  326. 

(/)  But  see  Poor  of  Yervel  v.  Sutton,  Duke,  43,  resolution  2  ;  Rowe  v.  Alms- 
men of  Tavistock,  id.  42 ;  Wright  v.  Newport  Pond  School,  id.  46 ;  Crouch  v. 
Citizens  of  Worcester,  id.  33. 

[g)  Attorney-General  v.  Warren,  2  Sw.  304. 

[h)  See  Attorney-General  v.  Owen,  10  Ves.  560;  Attorney-General  v.  Back- 
house, IT  Ves.  291 ;  Rowe  v.  Almsmen  of  Tavistock,  Duke,  42  ;  Wi'ight  v.  New- 
port Pond  School,  id.  46;  Poor  of  Yervel  v.  Sutton,  id.  43  ;  resolution  2  ;  Attor- 
ney-General V.  Pargeter,  6  Beav.  150. 

(?)  Attorne}--Gencral  v.  Owen,  10  Ves.  560,  per  Lord  Eldon  ;  and  see  Attorney- 


DUTIES    OF    TRUSTEES    OF    CHARITIES.  429 

la  Attorney-General  v.  Cross(7»-)  the  trustees  had  been  in  the  habit  of 
granting  leases  for  ninety-nine  years,  determinable  on  lives  in  considera- 
tion of  fines  and  the  reservation  of  a  small  rent,  a  mode  of  lotting  very 
general  in  the  county  where  the  lands  were  situate,  and  one  which  it 
was  proved  had  been  adopted  by  the  founder  himself.  On  a  bill  filed  to 
set  aside  such  a  lease,  Sir  W.  Grant  said,  "  It  is  very  diSicult  to  lay 
down  any  abstract  proposition  as  to  the  propriety  or  impropriety  of  leas- 
ing charity  estates  in  the  manner  complained  of.  Such  a  mode  of  letting, 
generally  objectionable,  may,  under  particular  circumstances,  be  the 
most  beneficial  that  can  be  adopted.  With  respect  to  a  charity,  indeed, 
the  reason  against  it  is  stronger  than  as  to  private  estates,  because  the 
purposes  of  the  charity  may  be  suffered  to  languish  during  the  intervals 
between  the  leases ;  but  still  even  as  to  charity  estates  it  is  impossible  to 
lay  down  any  general  rule.  Though  the  expediency  of  letting  charity 
estates  in  this  manner  may  be  more  or  less  questionable,  according  to 
the  nature  of  the  charity  and  the  circumstances  and  situation  of  the 
estate,  I  am  not  aware  of  any  principle  or  authority  on  which  it  can  be 
held  that  such  a  lease  is  on  the  very  face  of  it  a  breach  of  trust.  The 
legislature  has,  both  in  enabling  and  disabling  statutes,  considered  leases 
for  three  lives  as  on  a  footing  with  leases  for  twenty-one  years  absolute. 
So  have  the  founders  of  charities,  who  prohibited  the  letting  on  lease  for 
more  than  three  lives,  *or  twenty-one  years.  Supposing,  how-  rju'-iA-i 
ever,  that  where  charity  estates  have  been  letten  for  twenty-one  L  J 
years  it  would  be  considered  as  impi'oper  to  substitute  a  letting  for  lives, 
it  does  not  follow  that  we  can  impute  abuse  to  a  mere  adherence  to  the 
ancient  and  uniform  mode  of  letting,  especially  when  it  is  a  mode  usual 
in  the  district  in  which  the  estates  are  situate.  In  laying  down  pros- 
pective rules  for  the  regulation  of  a  charity,  it  may  be  very  fit  to  consider 
which  mode  is  best  calculated  to  answer  the  particular  purposes  of  such 
charity ;  but  to  set  aside  such  a  lease  already  existing  it  is  not  enough  to 
say  that  the  mode  of  letting  is  not  the  best  that  might  be  prescribed, 
because  on  such  a  point  there  may  be  a  great  diflFerence  of  opinion  among 
the  most  experienced  :  but  you  must  show  the  mode  is  so  positively  bad, 
that  no  persons  meaning  fairly  to  discharge  their  trust  would  have  resort- 
ed to  it.  This  may  be  said  of  a  lease  for  a  long  term  of  years  absolute 
at  a  stationary  rent,  because  no  man  of  a  reasonable  degree  of  providence 
would  so  let  his  own  estate  ;  but  many  landowners  do  still  let  their  estate 
upon  leases  for  lives,  and  formerly  the  general  usage  in  this  county  was 
to  let  in  this  manner."  And  upon  these  grounds  his  honor  dismissed 
the  bill,  and  allowed  the  trustees  their  costs  out  of  the  charity  estate. 

And  in  a  later  case,  where  charity  lands  had  for  two  hundred  years 
been  let  for  lives  upon  a  fine  or  foregift  at  a  small  reserved  rent,  Lord 
Langdale  said  there  was  no  principle  that  a  lease  of  a  charitable  es- 
tate for  lives  was,  on  the  face  of  it,  a  breach  of  trust ;  and  as  there 

General  v.  Griffith,  13  Ves.  575;  Attorney-General  v.  Backhouse,  17  Vcs.  291  ; 
Attorney-General  v.  Brooke,  18  Ves.  326;  Attorney-General  v.  Lord  Ilotham,  T. 
&R.  216;  Attorney-General  V.  Kerr,  2  Beav.  421;  Attorney-General  v.  Hall,  16 
Beav.  388. 

(k)  3  Mer.  524. 

March,  1858.— 28 


430  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

appeared  no  other  ground  of  invalidating  the  leases,  lie  refused  to  set 
them  aside. (?) 

Building  leases  should  be  for  a  term  not  exceeding  sixty,  or  ninety, 
or  ninety-nine  years. (m)  If  granted  for  a  longer  period,  it  would  be 
thrown  upon  the  parties  to  show  the  reasonableness  of  the  prolonged 
term  from  the  particular  circumstances  of  the  case. 

What  has  been  said  as  to  the  proper  duration  of  leases  is  of  course 
-,-,  only  applicable  where  the  founder  has  not  ^otherwise  given 
L  J  directions,  for  in  all  cases  the  will  of  the  settlor,  where  explicit, 
must  be  strictly  followed ;  as  if  the  terms  of  the  endowment  be  that  the 
charity  estates  shall  be  let  only  for  twenty-one  years,  the  trustees,  though 
satisfied  that  leases  of  ninety-nine  years  would  be  more  beneficial,  could 
not  make  such  a  deviation  from  the  directions  of  the  trust  without  the 
sanction  of  the  court.  It  was  said  on  one  occasion,  with  reference  to 
such  variations  from  the  founder's  intention,  that  the  court  itself  could 
not  give  a  good  title  to  the  lessee,  but  that  it  required  the  authority  of 
an  Act  of  Parliament. («.)  It  is  plain,  however,  that  there  is  a  wide 
distinction  between  a  deviation  from  the  founder's  intention  as  to  the 
ohjecU  of  the  charity,  and  a  deviation  from  the  directions  as  to  manage- 
ment, which  were  no  doubt  originally  meant  to  be  governed  by  circum- 
stances. 

When  there  has  been  no  actual  fraud,  and  the  lessee  or  assignee  of 
the  lease  has  laid  out  money  in  the  permanent  improvement  of  the  pro- 
perty, the  court  will  direct  an  inquiry  to  what  extent  the  charity  estate 
has  been  benefited,  and  will  allow  the  holder  of  the  lease  the  amount  of 
the  benefit  found. (o) 

Xow,  by  the  Charitable  Trusts  Amendment  Act,  1855,(jj)  s.  29,  trus- 
tees of  charities  are  disabled  from  granting  any  leases  (except  for  a  term 
not  exceeding  twenty-one  years,)  without  the  sanction  of  the  Charity 
Commissioners. 


[*512]  ^CHAPTER   XIX. 

THE   POWERS   or   TRUSTEES. 

The  powers  of  trustees  are  either  general  or  special;  the  former,  such 
as  by  construction  of  law  are  incident  to  the  oflBce  of  trustee ;  the  latter, 
such  as  are  communicated  by  the  settlor  himself  by  an  express  proviso 
in  the  instrument  creating  the  trust. 

[I)  Attorney-General  v.  Crook,  1  Keen,  121,  see  126. 

(m)  See  Attorney-General  v.  Owen,  10  Ves.  560;  Attorney-General  v.  Back- 
house, 17  Ves.  291;  Attorney-General  v.  Foord,  6  Beav.  290. 

{n)  Attorney-General  v.  Mayor  of  Rochester,  2  Sim.  34. 

(o)  Attorney-General  v.  Day,  V.  C.  K.  Bruce,  March  9,  1847;  and  see  Attorney- 
General  v.  Green,  6  Ves.  452;  Attorney-General  v.  Kerr,  2  Beav.  420;  Swan  v. 
Swan,  8  Price,  518;  Attorney-General  v.  Baliol  College,  9  Mod.  411;  Savage  v. 
Taylor,  Forr.  234 ;  Shine  v.  Gough,  1  B.  &  B.  444. 

(//)  18  &  19  Vic.  c.  124. 


THE    POWERS    OF    TRUSTEES.  431 

SECTION  I. 

OP    THE    GENERAL   POWERS    OF   TRUSTEES. 

In  a  court  of  law  the  trustee,  as  the  absolute  proprietor,  may  of  course 
exercise  all  such  powers  as  the  legal  ownership  confers ;  but  in  equity 
the  cestui  que  trust  is  the  absolute  owner,  and  the  question  we  have  to 
consider  in  this  place  is,  how  far  the  trustee  may  deal  with  the  estate 
without  rendering  himself  responsible  in  the  forian  of  a  court  of  equity. 

With  reference  to  the  simple  trust,  as  the  trustee  is  a  mere  passive 
depositary,  he  can  neither  take  any  part  of  the  profits,  nor,  except  in 
defence  or  protection  of  the  estate,  can  exercise  any  dominion  or  control 
over  the  corjnis. 

In  the  special  trust  the  authority  of  the  trustee  is  equally  limited, 
except  so  far  as  the  execution  of  the  trust  itself  may  invest  him  with  a 
proprietary  power.  The  duties  thus  prescribed  to  him  the  trustee  is 
bound  strictly  to  pursue  without  swerving  to  the  right  hand  or  to  the 
left ;  as  if  money  be  given  to  be  laid  out  in  a  purchase  of  lands,  he 
would  not  be  justified  in  expending  part  on  a  purchase  and  applying  the 
residue  upon  repairs  and  improvements. ((/) 

*But,  under  particular  circumstances,  the  trustee  is  held  capa-  j-^_^^^ 
ble  of  exercising  the  discretionary  powers  of  the  hona  fide  pro-  L  '^J 
prietor;  for  the  trust  estate  itself  might  otherwise  be  injuriously  afi'ected. 
The  necessity  of  the  moment  may  demand  an  immediate  decision,  while 
the  sanction  of  the  parties  who  are  beneficially  interested  cannot  be  pro- 
cured without  great  inconvenience,  as  where  the  cestuis  que  trust  arc  a 
numerous  class,  or  perhaps  cannot  be  obtained  at  all,  as  where  the  cestuis 
que  trust  are  under  disability,  or  not  yet  in  existence.  The  alternative 
of  instituting  a  suit  for  the  mere  purpose  of  consulting  the  court  would 
always  be  attended  with  considerable  expense,  and,  it  maybe,  an  expense 
wholly  disproportion ed  to  the  importance  of  the  occasion,  and  perhaps  in 
the  mean  time  the  opportunity  might  be  lost.  It  is  therefore  evidently 
in  furtherance  of  the  cestui's  que  trust  own  interest,  that,  where  the  cir- 
cumstances of  the  case  require  it,  the  trustee  should  be  at  liberty  to 
exercise  a  reasonable  discretionary  power,  (r) 

It  is  a  general  rule  of  equity,  that  what  is  compellable  by  suit,  or 
would  have  been  ordered  by  the  court,  is  equally  valid  if  done  by  the 
trustee  without  suit,  i.  e.,  without  the  sanction  of  the  court. (.s)  The  dif- 
ficulty with  which  the  trustee  has  to  struggle  is  the  danger  of  assuming 
that  the  court,  on  application  to  it,  would  view  the  matter  in  the  same 
light  in  which  he  regards  it  himself. 

A  trustee,  clothed  with  a  trust  to  manage  real  estates  for  the  benefit 
of  a  person  absolutely  entitled,  but  incapable  from  infancy  or  otherwise 

[q)  Bostock  V.  Blakeney,  2  B.  C.  C.  653. 

(r)  See  Angell  v.  Dawson,  3  Y.  &  C.  317. 

(6)  Lee  V.  Brown,  4  Ves.  3G9,  per  Car.  ;  Earl  of  Bath  v.  Bradford,  2  Vcs.  590, 
per  Lord  Hardwicke  :  Cook  v.  Parsons,  Pr.  Ch.  185,  per  Cur. ;  Inwood  v.  Twyne, 
2  Ed.  153,  per  Lord  Northington ;  Ilutclieson  v.  Hammond,  3  Br.  C.  C.  145,  per 
BuUcr,  J.;  Terry  v.  Terry,  Gilb.  11,  per  Lord  Gowper;  Shaw  v.  Borrer,  1  Keen, 
576,  per  Lord  Langdale. 


432  LEW  IN    ON    THE    LAW    OF    TRUSTS,    ETC. 

to  give  directions,  may  make  repairs.  But  he  must  not  go  beyond  the 
necessity  of  the  case,  as  by  ornamental  improvements,  or  the  expense 
will  not  be  allowed. (^]  Where  the  legal  estate  is  vested  in  trustees  in 
trust  for  one  person  for  life,  with  remainders  over  to  others,  it  would 
T*''^A.'\  ^^^®  *been  natural  to  suppose  that  the  rights  in  equity  as  be- 
L  J  tween  the  tenant  for  life  and  the  remaindermen  would  be  the 
same  as  those  at  law  between  a  legal  tenant  for  life  and  legal  remainder- 
men. It  is,  however,  now  clearly  settled,  that  whatever  may  be  the 
legal  liability  of  a  legal  tenant  for  life  in  respect  of  permissive  waste,(«) 
the  trustee  cannot  (where  there  is  no  special  clause  of  management,)  in- 
terfere with  the  possession  of  an  equitable  tenant  for  life  who  neglects 
to  repair. (f]  In  other  respects  the  rights  in  equity  must,  it  is  conceived, 
be  governed  by  those  at  law.  Thus  a  legal  tenant  for  life  may  cut  tim- 
ber for  the  purpose  of  repairs, (ii;)  though  he  may  not  cut  timber  to  sell 
it  and  apply  the  produce,(x)  nor  to  repay  himself  outlay  in  repairs  ;(^) 
and  similarly  the  trustee  may,  it  is  conceived,  as  against  the  remainder- 
man, cut  timber  for  necessary  repairs,  if  the  tenant  for  life  will  consent 
to  an  application  of  income  towards  repairs  in  making  use  of  the  timber. 
The  repairs  by  a  tenant  for  life,  however  substantial  and  lasting,  being 
his  own  voluntary  act,  and  not  arising  from  any  obligation,  he  cannot 
claim  any  charge  for  them  upon  the  inheritance,(2)  nor  will  the  court  at 
his  instance  direct  lasting  improvements  to  be  made;(a)  and  though  it 
was  said  by  the  court  in  one  case  that  the  rule  might  not  be  absolutely 
without  exception,  as  if  there  were  a  settled  estate,  and  a  fund  directed 
to  be  laid  out  in  a  purchase  to  the  same  uses,  it  might  be  more  beneficial 
to  the  remainderman  that  part  of  the  trust  fund  should  be  applied  to 
prevent  buildings  on  the  settled  estates  from  going  to  destruction,  than 
that  the  whole  should  be  laid  out  in  the  purchase  of  other  lands,(6)  an 
extraordinary  case  would  be  requisite  to  create  such  exception. (c) 
p^r-|r-i  *Where  an  estate  was  devised  to  A.  and  his  heirs  upon  trust 
L  J  to  settle  on  B.  for  life,  subject  to  impeachment  of  waste,  remain- 
der to  C.  for  life,  sans  impeachment  of  waste,  remainder  to  C.'s  first  and 
other  sons  in  tail,  and  before  any  settlement  was  executed  the  trustee, 
with  the  concurrence  of  B.  and  C.,  cut  down  timber  which  showed  symp- 
toms of  decay.  Sir  L.  Shadwell  said  "  he  considered  the  timber  to  have 
been  cut  by  the  authority  of  the  trustee  who  had  a  superintending  control 
over  the  estate  ;  that  it  was  not  a  wrongful  act ;  and  that  the  effect  of  it 
must  be  the  same  as  if  it  had  been  done  with  the  sanction  of  the  court.  ((?) 

(0  Bridge  v.  Brown,  2  Y.  &  C.  Ch.  Ca.  181. 

(m)  Powys  V.  Blagrave,  4  De  Gex,  M.  &  G.  458,  and  cases  there  cited  by  Lord 
Granworth  ;  Harnett  v.  Maitland,  16  M.  &  W.  257.  The  legal  question  must  be 
considered  still  ^' sub  Judice."  See  Re  Skingley,  3  Mac.  &  Gor.  221  ;  and  Gregg  v. 
Coates,  2  Jur.  N.  S.  964 ;  where  the  tenant  for  life  was  held  liable  under  the  parti- 
cular words  of  the  will  in  each  case. 

(v)  Powys  V.  Blagrave,  Kay,  495  ;  4  De  Gex,  M;  &  G.  448. 

(w)  Co.  Lit.  54  b.  (x)  Co.  Lit.  53  b. 

{y)  Gowerv.  Eyre,  Coop.  150;  and  see,  Duke  of  Marlborough  v.  St.  John,  5  De 
Gex  &  Sra.  181. 

(2)  Hibbert  V.  Cooke,  1  S.  &  S.  552;  Caldecott  v.  Brown,  2  Hare,  144  ;  and  see 
Bostock  V.  Blakeney,  2  B.  C.  C.  653.  (a)  Nairn  v.  Marjoribanks,  3  Russ.  582. 

(6)  Caldecott  v.  Brown,  2  Hare,  145,  per  Sir  J.  Wigram. 

(c)  Dunne  v.  Dunne.  3  Sni.  &  Gif.  22  ;  see  p.  28.     (d)  W^aldo  v.W^aldo.  7  Sim.  261. 


THE    POWERS    OF    TRUSTEES.  433 

So  trustees  of  a  charity  would,  until  the  late  charity  acts,  have  been 
justified  in  aliening  the  estate  where,  under  the  same  circumstances,  the 
court  on  application  would,  from  the  necessity  of  the  case,  have  made  an 
order  to  that  effect,  (e^ 

So  conservators  of  public  works  and  similar  qiuisi  trustees  are  autho- 
rized to  apply  the  funds  under  their  control  in  opposing  a  bill  in  parlia- 
ment, the  eifect  of  which  if  passed  would  be  injurious  to  the  interests 
confided  to  them.  Thus  by  an  act  of  parliament  it  was  provided  that 
the  banks  of  the  Ouse,  in  Norfolk,  should  be  maintained  by  commis- 
sioners, with  power  to  levy  rates  upon  the  adjacent  landowners,  which 
were  to  be  applied  « in  making,  doing,  constructing,  and  executing  all  such 
works,  acts,  matters,  and  things  as  by  such  commissioners,  should,  from 
time  to  time,  be  deemed  necessary,  proper,  or  expedient,  for  putting  the 
banks  into,  and  maintaining  the  same  in,  a  permanent  state  of  stability." 
The  Norfolk  Estuary  Company  applied  for  an  act  to  reclaim  from  the  sea 
a  tract  of  land  near  the  mouth  of  the  Ouse.  The  commissioners  there- 
upon held  a  meeting,  and  the  majority  passed  a  resolution  that  proceed- 
ings should  be  taken  for  watching,  and  if  necessary,  for  opposing  the  bill 
in  parliament,  and  that  a  rate  of  6f7.  an  acre  should  be  levied  for  defray- 
ing the  expenses,  and  150/.  in  hand  was  paid  to  the  chairman  for  the  like 
purpose.  Three  of  the  landowners,  on  behalf  of  themselves  and  the 
others,  filed  a  bill  against  the  *commissioners,  alleging  a  pretence  r^c;[^c-| 
by  the  defendants  that  the  proposed  scheme  would  be  injurious  L  J 
to  the  banks  of  the  Ouse,  but  charging  that,  whether  injurious  or  not, 
the  funds  ought  not  to  be  applied  in  pursuance  of  the  resolution,  and 
praying  that  the  150?.  might  be  repaid,  and  an  injunction  against  the 
application  of  any  future  funds  in  pursuance  of  the  resolution.  The 
defendants  demurred,  and  Lord  Cottenham,  after  referring  to  the  plead- 
ings, said,  "  I  must  assume  that  the  works  are  likely  to  be  injurious. 
Now  it  is  clear  that  if  actual  injury  was  done,  and  proper  measures  had 
been  taken  by  the  commissioners  to  prevent  it,  they  would  be  entitled  to 
be  allowed  their  expenses  so  incurred,  for  every  trustee  is  entitled  to  be 
allowed  the  reasonable  and  proper  expenses  incurred  in  protecting  the 
property  committed  to  his  care.  But  if  they  have  a  right  to  protect  the 
property  from  immediate  and  direct  injury,  they  must  have  the  same 
right  where  the  injury  threatened  is  indirect,  but  probable;"  and  the 
demurrer  was  allowed. (/) 

On  the  other  hand,  quasi  trustees,  such  as  those  before  referred  to,  arc 
not  entitled  to  apply  the  funds  of  an  existing  undertaking  in  or  towards 
the  expense  of  obtaining  other  or  larger  parliamentary  powers.(</) 

A  trustee  would,  it  is  conceived,  under  special  circumstances,  and  in 

(e)  Attorney-General  v.  South  Sea  Company,  4  Beav.  458,  per  Lord  Langdale  ; 
Bee  ante. 

(/)  Bright  V.  North,  2  Phill.  216;  and  see  The  Queen  v.  Norfolk  Commissioners 
of  Sewers,  15  Q.  B.  R.  549. 

(g)  Attorney-General  v.  Andrews,  1  Mac.  &  Gor.  225;  Attorney-General  v. 
Guardians  of  Poor  of  Southampton,  17  Sim.  6  ;  Attorney-General  v.  Corporation 
of  Norwich,  16  Sim.  225  ;  Stevens  v.  South  Devon  Railway  Company,  13  Beav.  48  ; 
Vance  v.  East  Lancashire  Railway  Company,  3  K.  &  J.  50. 


434       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

due  course  of  management,  be  justified  in  insuring  the  property  ;(A)  but 
where  there  is  a  tenant  for  life,  he  could  not  be  advised  to  do  so  out  of 
the  income  without  the  tenant  for  life's  consent.  And  a  mortgagee  is 
not  regarded  as  a  trustee ;  and  if,  in  the  absence  of  any  stipulation  on  the 
subject,  he  effects  an  insurance,  it  is  on  his  own  account,  and  he  cannot 
claim  to  be  entitled  to  the  premiums  under  just  allowances.  It  is  the 
same  as  if  the  lessor  or  lessee  insured,  in  which  case  the  other  would 
have  no  claim  to  the  benefit  of  the  policy. (*) 

*An  executor  may  appropriate  a  legacy  without  the  necessity 
L  "^  '  J  of  a  suit,  where  the  appropriation  is  such  as  the  court  itself  would 
have  directed. (/ij) 

A  trustee  may  expend  sums  of  money  for  the  protection  and  safety,  or 
for  the  maintenance  and  support,  of  a  cestui  que  trust  who  is  incapable  of 
taking  care  of  himself,  but  the  safer  course  is  to  apply  to  the  court. (?) 

If  a  legacy  be  left  to  an  infant,  and  the  court,  upon  application,  would, 
from  the  inability  of  the  parent  to  support  his  child,  order  maintenance 
out  of  the  interest,  the  trustee,  should  he  make  advances  for  that  purpose 
without  suit,  would  be  allowed  them  in  his  account,  (m)  In  the  case  of 
Andrews  v.  Partington,(?j)  Lord  Thurlow  refused  to  indemnify  the 
trustee :  but  the  authority  of  that  decision  has  been  repeatedly  denied, 
and  may  be  considered  as  overruled. (o)  And  the  maintenance  of  each 
year  need  not  be  confined  to  the  interest  of  that  year,  but  the  trustee  will 
be  allowed  in  his  accounts  to  set  off  the  gross  amount  of  the  maintenance 
against  the  gross  amount  of  the  interest.(p) 

Where  the  amount  of  the  legacy  is  inconsidererable,  as  100?.,  the  court 
would,  in  the  absence  of  other  means,  direct  maintenance  to  the  child 
out  of  the  principal  itself  '.{q)  the  executor,  therefore,  who,  under  similar 
circumstances,  but  without  the  authority  of  the  court,  breaks  in  upon  the 
capital,  would  not  be  liable,  on  the  cestui' s  que  trust  coming  of  age,  to 
account  for  the  expenditure. (/•)  However,  where  the  legacy  was  not 
P^p.-.„-.  more  than  300?.,  Sir  W.  Grant  determined  that  the  trustee  had 
L  -I  ^exceeded  his  duty,  and  said  his  impression  was,  that  the  rule 
had  been  never  to  permit  trustees  of  their  own  authority  to  break  in  upon 
the  capital  ;(s)  but  the  case  of  Barlow  v.  Grant,  which  is  clearly  to  the 

(h)  Ex  parte  Andrews,  2  Uose,  412. 

{i)  Dobson  v.  Land,  8  Hare,  216  ;  and  see  Ex  parte  Andrews,  2  Rose,  410  ;  Phil- 
lips V.  Eastwood,  LI.  &  Goold.  t.  Sugden,  289. 

(k)  Hutcheson  y.  Hammond,  3  B.  C.  C.  128,  see  145,  148;  and  see  Cooper  v. 
Douglas,  2B.  C.  C.  231. 

(l)  Buncombe  v.  Nelson,  9  Beav.  211;  and  see  Chester  v.  Rolfe,  4  De  Gex,  M. 
&  G.  798,  and  cases  there  cited. 

(w)  Sisson  V.  Shaw,  9  Yes.  285.  (n)  3  B.  C.  C.  60. 

(o)  See  Sisson  v.  Shaw,  9  Ves.  288  ;  Maberlj  v.  Turton,  14  Yes.  499  ;  Lee  v. 
Brown,  4  Yes.  369;  Ex  parte  Darlington,  1  B.  &  B.  241;  and  see  Cotham  v.  West, 
1  Beav.  381. 

(p)  Carmichael  v.  Wilson,  3  Moll.  "79. 

(q)  Ex  parte  Green,  1  J.  &  W.  253  ;  Ex  parte  Chambers,  1  R.  &  M.  577;  Ex 
parte  Swift,  ib.  575;  In  re  Mary  England,  id.  499 ;  Harvey  v.  Harvey,  2  P.  W.  21 ; 
Ex  parte  Hays,  3  De  Gex  &  Sm.  485;  Worthington  v.  M'Craw,  26  L.  J.,  N.  S. 
(Ch.)  286. 

(r)  Barlow  v.  Grant,  1  Yarn.  255  :  Carmichael  v.  Wilson,  3  MolL  79  ;  Bridge  v. 
Brown,  2  Y.  &  C.  Ch.  Ca.  181. 

(s)  Walker  v.  Wetherell,  6  Yes.  473. 


THE    POWERS    OF    TRUSTEES.  435 

contrary,  must  have  escaped  his  honor's  recollection.  In  Swinnock  v. 
Crisp, (<)  where  the  legacy  was  250/'.  to  be  divided  amongst  three  children, 
the  executrix,  who  was  the  mother,  was  not  allowed  the  sums  which  she 
had  paid  out  of  the  principal :  but  the  ground  of  the  decision  was  the 
notion,  since  overruled,  that  the  executrix,  though  she  had  married 
again,  was  under  a  legal  obligation,  as  mother,  to  provide  a  maintenance 
for  her  children. (»)  Where  the  legacy  is  considerable,  as  1000?.  or  the 
like,  as  the  court  itself  would  not  order  the  application  of  part  of  the 
principal,  the  trustee  would  not  be  justified  in  exceeding  of  his  own 
authority  the  amount  of  the  interest. (y) 

A  part  of  the  capital  may  be  sunk  by  a  trustee  without  the  direction 
of  the  court  for  the  advancement  of  a  child,  where  the  same  sums  if  ex- 
pended for  maintenance  would  not  have  been  allowed. (w) 

In  Smee  v.  Martin(x')  a  testator  gave  100/  to  A.  B.,  ''  not  to  be  paid 
until  he  came  of  age,  and  in  the  meantime  5/.  per  annum  to  be  allowed 
out  of  the  testator's  estate  for  his  maintenance."  The  executrix,  who 
was  his  mother,  had  expended  in  binding  him  apprentice,  fitting  him  out 
for  India,  and  other  necessaries,  more  than  100?.  and  the  court  decreed 
the  payment  of  the  legacy  in  full  without  any  deduction  for  the  disburse- 
ments. <'  The  mother,"  it  was  said,  <'  ought  by  nature  to  provide  for  the 
maintenance  and  education  of  her  own  son  :  besides,  it  appeared  plainly 
the  intention  of  the  testator  that  the  100?.  should  not  be  touched  until 
A.  B.  came  of  age,  for  there  was  a  yearly  allowance  in  the  meantime  of 
5?.,  and  it  was  at  her  peril  that  she  exceeded  that."  The  case  therefore 
does  not  militate  against  the  general  rule,  but  was  determined  r*cin-| 
upon  *the  particular  circumstances,  that  the  executrix,  as  mother,  L  J 
was  herself  liable  for  the  maintenance  of  the  child,  (a  position  not  tenable 
at  the  present  day,)  and  that  the  expenditure  of  part  of  the  capital  was 
against  the  clear  intention  of  the  testator. 

But  a  trustee  cannot  apply  part  of  the  principal  towards  the  advance- 
ment of  the  child  where  the  legacy  is  subject  to  a  limitation  over  in 
favour  of  a  stranger,  for  in  such  a  case  the  court  itself  could  not  make 
an  order  to  that  effect. 

Thus  in  Lee  v.  Brown, (^)  where  a  testatrix  gave  100?.  to  trustees 
upon  trust  to  apply  the  produce  to  the  maintenance  and  education  of 
A.  B.,  and  when  he  should  attain  twenty-one  to  transfer  to  him  the 
capital,  but  in  case  he  died  under  that  age  the  testatrix  gave  the  legacy 
to  his  brother  and  sister  equally.  Lord  Alvanley  said,  '<  It  certainly  was 
not  competent  under  this  trust  to  the  executor,  nor  could  he,  if  he  had 
applied,  have  obtained  permission  from  this  court,  to  advance  any  part 
of  the  capital  of  the  legacy  in  putting  the  child  out  in  the  world ;  for 
if  it  had  been  such  a  case  that  the  court  looidd  have  authorized  the  act 
that  was  done,  I  desire  to  he  understood  that  it  would  he  considered  as 
properly  done;  for  the  principle  is  noio  estahlished,  that  if  an  executor 

(t)  Freem.  18.  («)  Billingsly  v.  Critchet,  1  B.  C.  C.  268. 

(v)  Barlow  v.  Grant,  1  Vern.  255,  per  Lord  Guildford;  Davies  v.  Austen,  1  Ves. 
jun.  247;  S.  C.  3  B.  C.  C.  178. 

(iv)  Swinnock  v.  Crisp,  Freem.  78  ;  and  see  Ex  parte  M'Key,  1  B.  &  B.  405. 

(x)  Bumb.  136. 

(V)  4  Ves.  362;  Worthington  v.  M'Craw,  supra,  p.  517. 


436  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

does  without  application  what  the  court  would  have  approved,  he  shall 
not  be  called  to  account,  and  forced  to  undo  that  merely  because  it  was 
done  %oithout  appilication." {zj 

But  wliere  legacies  were  given  to  children  payable  at  twenty-one  or 
marriage,  with  a  limitation  over  on  the  death  of  any  child  before  attain- 
ing twenty-one  or  marriage,  not  in  favour  of  a  stranger,  but  for  the 
benefit  of  such  of  the  children  as  should  attain  twenty-one  or  marry,  a 
trustee,  who  had  paid  a  premium  on  the  apprenticeship  of  a  child,  who 
died  under  twenty-one,  was  allowed  it  by  the  court. (a)  The  case  turned 
upon  the  same  principle  as  where  a  legacy  is  given  to  a  class,  all  or  some 
of  whom  must  take  the  fund  absolutely,  when,  as  all  have  an  equal 
chance  of  survivorship,  the  individuals  of  the  class  will  *be 
L  -^  ordered  maintenance  even  before  their  shares  in  the  fund  have 
become  actually  vested. (6) 

An  executor  has  never  been  held  responsible  for  paying  a  debt  due 
and  owing  from  the  testator's  estate,  but  the  remedy  for  which  had  been 
barred  by  the  Statutes  of  Limitation. (c) 

A  trustee,  under  circumstances,  may  release  or  compound  a  debt. 
Thus,  where  the  tenant  of  part  of  the  trust  estate  owed  225^.  for  arrears 
of  rent,  and  afterwards  became  insolvent,  and  the  trustee  released  the 
debt  and  gave  a  bonus  of  20?.  on  condition  that  the  tenant  should  give 
up  the  premises,  which  was  done,  it  was  argued  that  the  trustee,  before 
he  made  the  release,  should  have  consulted  the  cestuis  que  trust  in  esse 
for  their  consent ;  and,  in  case  of  their  obstinacy,  should  have  applied 
to  the  court  for  directions ;  and  though  it  might  be  true  that  the  tenant 
was  at  the  time  insolvent,  yet  thereafter  he  might  have  become  solvent 
and  able  to  pay  the  rent;  and  as  to  the  gaining  of  possession,  that  was  of 
no  great  value,  as  there  was  a  proviso  in  the  lease  for  the  landlord's  re- 
entry in  case  of  non-payment  of  the  rent;  but  Lord  Chancellor  Talbot 
said,  ''  The  tenant  becoming  insolvent,  the  testator's  estate  has  not  suf- 
fered by  this  release,  in  regard  if  the  arrears  of  rent  had  not  been  released, 
the  trustees  could  never  have  gotten  them  when  the  tenant  was  unable 
to  pay  them;  and  if  the  testator's  estate  has  not  suflfered  on  account  of 
the  release,  there  is  no  reason  it  should  gain  thereby.  The  trustee  seems 
to  have  done  nothing  but  what  was  prudent.  A  vexatious  tenant  may 
put  the  landlord  to  great  trouble  and  delay  by  a  wrongful  detainer  of  the 
possession,  and  by  damaging  the  estate  in  the  mean  time,  and  may  force 
the  landlord  to  ejectment,  writs  of  error,  and  bills  in  equity,  by  means  of 
which  he  may  lose  not  only  his  accruing  rent,  but  his  costs  of  suit. 
Neither  will  I  make  any  difference  between  the  201.  and  the  release  of 
the  arrears,  for  both  were  but  one  entire  consideration  for  the  tenant's 
quitting  the  possession ;   and  by  the  same  reason  that  the  trustee  has 

(z)  4  Ves.  369. 

(a)  Franklin  v.  Green,  2  Vern.  137.  That  the  limitation  over  was  for  the  benefit 
of  the  children  is  not  mentioned  in  the  report,  but  appears  from  Reg.  Lib. 

(b)  See  Rop.  Leg.  ch.  xx.  s.  5 ;  Greenwell  v.  Greenwell,  5  Vesey,  194 ;  Caven- 
dish V.  Mercer,  cited  ib.  ;  Brandon  v.  Aston,  2  Y.  &  C.  Ch.  Ca.  30. 

(c)  Stahlschmidt  V.  Lett,  1  Sm.  &  Gif.  415. 


THE    POWERS    OP    TRUSTEES.  437 

been  allowed  the  one,  lie  ouglit  to  be  allowed  the  *otlier.(^)  But  r;,:- 9-1-1 
if  a  trustee  release  or  compound  a  debt  without  some  sufficient  L  "^  J 
ground  in  justification  of  his  conduct,  he  will  clearly  be  answerable  to 
the  cestui  que  trust  for  the  amount  of  the  devastavit. (e^ 

The  same  principles  may  be  applied  to  cases  of  constant  occurrence  in 
practice.  Thus  trustees  of  an  equity  of  redemption  of  lands  mortgaged 
for  more  than  their  value,  may  release  the  equity  of  redemption  to  the 
mortgagee,  rather  than  be  made  defendants  to  a  foreclosure  suit,  the 
costs  of  which,  so  far  as  incurred  by  themselves,  will  fall  upon  the  trust 
estate. 

Where  trustees  are  mortgagees  they  are  often  requested  to  release  part 
of  the  land  from  the  security,  in  order  to  enable  the  mortgagor  to  deal 
with  it  for  his  own  convenience.  Where  the  value  of  the  land  is  not 
excessive  as  compared  with  the  debt,  it  would,  of  course,  be  a  gross 
breach  of  trust  to  deteriorate  the  security.  But  suppose  the  value  of  the 
part  to  be  left  in  mortgage  to  be  at  least  double  the  amount  of  the  debt, 
may  the  trustees  release  the  residue  ?  It  is  presumed  that  trustees  can 
never  justify  the  abandonment  of  any  part  of  the  security  on  the  mere 
ground  of  consulting  the  convenience  of  the  mortgagor.  They  must  be 
prepared  to  show  that  the  act  was  calculated  under  the  circumstances  to 
promote  the  interests  of  the  cestuis  que  trust.  If,  for  example,  the  mort- 
gagor be  ready  to  pay  off  the  mortgage  on  a  transfer  of  the  security, 
unless  the  trustees  will  consent  to  release,  and  the  existing  mortgage, 
Oiren  when  confined  to  the  narrower  parcels,  is  a  highly  beneficial  one 
and  the  value  still  abundantly  ample,  it  is  conceived  the  trustees  would 
not  incur  responsibility  in  acceding  to  the  arrangement. 

A  trustee  may  reimburse  himself  a  sum  of  money  hona  fide  advanced 
by  him  for  the  benefit  of  the  cestui  que  trust,  or  even  for  his  own  protec- 
tion in  the  execution  of  his  office. 

Thus,  a  trustee  of  1000/.  South  Sea  stock  had  mortgaged  it  to  the 
South  Sea  Company,  at  the  request  of  the  cestui  que  trust  for  4000/. ; 
some  time  after,  the  South  Sea  bubble  burst  and  the  1000/.  stock  fell  to 
a  mere  nominal  value.  An  act  *having  been  passed  by  which  it  j.^..^.-,-. 
was  provided  that  if  any  mortgagor  to  the  company  should  pay  L  "^''J 
10/.  per  cent,  by  such  a  day  the  debt  should  be  extinguished,  the  trustee 
took  upon  himself  to  pay  the  10/.  per  cent.,  the  cestui  que  trust,  who 
laboured  under  the  impression  that  a  mortgagor  was  at  liberty  by  forfeit- 
ing his  pledge  to  be  quit  of  the  debt,  refusing  to  give  his  consent.  The 
trustee  filed  a  bill  against  the  cestui  que  trust  to  recover  the  money  which 
had  been  disbursed;  and  Lord  Chancellor  King,  in  deciding  for  tlie 
plaintiff,  observed,  "  When  money  is  borrowed,  it  ought  to  be  repaid, 
and  though  a  pledge  was  given  for  it,  if  that  proves  insufficient,  the  bor- 
rower ought  to  be  liable.  But  if  in  the  present  case  there  was  only  a 
hazard,  the  trustee  ought  not  to  continue  liable  to  such  hazard  :  on  the 
contrary,  as  it  is  a  rule  that  the  cestui  que  trust  ought  to  save  the  trustee 

(d)  Blue  V.  Marshall,  3  P.  W.  381 ;  and  see  RatclifiFe  v.  Winch,  17  Beav.  216; 
Forshaw  v.  Iligginson,  3  Jur.  N.  S.  4V6. 

(c)  Jevon  V.  Bush,  1  Vern,  342;  Gorge  v.  Chausej,  1  Ch.  Re.  125;  Wiles  v. 
Gresham,  5  De  Gex,  M.  &  G.  770. 


438  LEWIN    ON    THE    LAW    OF    TKUSTS,    ETC. 

harmless,  so,  within  the  reason  of  that  rule,  when  the  trustee  has  honestly 
and  fairly,  without  any  possibility  of  being  a  gainer,  laid  down  money 
by  which  the  cestui  que  trust  is  discharged  from  being  liable  for  the 
whole  money  lent,  or  from  a  plain  and  great  hazard  of  being  so,  he  ought 
to  be  repaid."(/) 

A  trustee  for  payment  of  debts  and  legacies,  and  subject  thereto  upon 
trust  for  A.  for  life  with  remainders  over,  has  no  power,  after  the 
accounts  have  been  taken  by  the  court  and  A.  declared  entitled  to  the 
possession,  to  make  an  admission  binding  upon  A.  of  any  further  debt, 
and  to  resume  the  possession  for  the  purpose  of  discharging  \i.[g) 

It  has  been  held  that  a  trustee  of  lands  may  grant  a  reasonable  lease. 
Thus,  a  testator  had  devised  an  estate  to  two  trustees  in  fee  upon  trust 
out  of  the  yearly  rents  and  profits  to  pay  two  annuities  of  60/.  and  lUZ. 
respectively,  and  subject  thereto  upon  trust  for  certain  persons  succes- 
sively for  life,  with  remainder  to  their  issue.  The  trustees  granted  a 
lease  of  the  lands  for  the  term  of  ten  years,  and  Sir  John  Leach  held 
r*f^9^T  ^^^^  ^^®y  ^^^^  °^*  exceeded  their  authority. (/i)  But  it  *must 
L  "  -I  not  be  inferred  from  this  case  that  a  trustee  is  at  liberty,  except 
under  peculiar  circumstances,  to  grant  other  than  a  husbandry  lease, 
which  never  exceeds  twenty-one  years ;((')  and  of  course  he  cannot  make 
even  that  demise  where  it  is  a  simple  trust,  and  the  cestui  que  trust  is  in 
possession,  except  he  do  it  with  the  cestui  s  que  trust  concurrence.  And 
prima  facie  a  trustee  for  sale  would  not  be  justified  in  granting  a 
lease. (A;) 

A  trustee  has  no  power  mero  motu,  in  the  absence  of  express  autho- 
rity, to  vary  the  securities  upon  which  the  trust-fund  stands  invested, 
assuming  them  to  be  proper. (/)  Indeed,  where  he  makes  the  investment 
in  the  first  instance  himself,  he  ought,  in  all  cases  where  the  settlor  has 
not  warranted  a  different  course,  to  invest  in  the  3^>er  cent,  consols  ;  and 
then,  as  that  fund  is  considered  by  the  court  the  most  beneficial  to  the 
trust,  he  would  hardly  be  justified  in  making  a  change  not  tending  to 
ameliorate  the  estate.  Should  the  trust  authorize  an  investment  upon 
real  or  government  securities  without  any  power  of  variation,  and  the 
trustee  lend  upon  mortgage,  of  course  he  cannot  prevent  the  mortgagor 
from  paying  oil  the  money,  and  therefore  he  may  sign  a  discharge  for  it, 
and  may  then  invest  it  upon  another  mortgage,  or  in  the  funds. (m) 
Where,  however,  the  trustee  was  directed  to  invest  upon  security,  but 
real  security  was  not  mentioned,  and  he  lent  upon  a  mortgage,  the  court 
did  not  think  it  so  clear  that  the  trustee  could  sign  a  receipt  when  the 
money  was  paid  ofFas  to  compel  a  purchaser  to  take  a  title  which  depended 
on  that  question. (h)     The  power  of  signing  a  receipt  in  such  cases  de- 

(/)  Balsh  V.  Plyham,  2  P.  W.  453.  {g)  Underwood  v.  Hatton,  5  Beav.  36. 

(A)  Naylor  v.  Arnit,  1  R.  &  M.  501  ;  and  see  Bowes  v.  East  Lond.  Waterworks' 
Com.,  Jac.  324 ;  Drohan  v.  Drohan,  1  B.  &  B.  185  ;  Middleton  v.  Dodswell,  13  Ves. 
268.  ' 

(?)  See  Attorney-General  v.  Owen,  10  Ves.  560. 

{k)  Evans  v.  Jackson,  8  Sim.  217.         (Z)  See  Angell  v.  Dawson,  3  Y.  &  C.  316. 

(m)  Wood  V.  Harman,  5  Mad.  368;  Locke  v.  Lomas,  5  De  G.  &  Sm.  326. 

(n)  Hanson  v.  Beverley,  Vend.  &  P.  848,  11th  ed. 


THE    POWERS    OF    TRUSTEES.  439 

pends  on  the  intention  as  collected  from  the  instrument,  and  unless  it 
contain  authority  to  lend  on  a  mortgage  no  power  of  signing  a  receipt 
when  it  is  paid  off  is  implied. 

The  powers  assigned  in  the  proceeding  pages  to  trustees  must  be  taken 
subject  to  the  qualification,  that  if  a  suit  has  been  instituted  for  the  exe- 
cution of  the  trust,  (nid  a  decree  *made,  the  powers  of  the  trus-  -^^.^  ... 
tees  are  thenceforth  so  far  paralyzed  that  the  authority  of  the  L  ~  J 
court  must  sanction  every  subsequent  proceeding,  (c) 

Thus  the  trustees  cannot  commence  or  defend  any  action  or  suit  or  inter- 
fere in  any  other  legal  proceeding  without  first  consulting  the  court  as  to 
the  propriety  of  so  doing. (p)  A  trustee  for  sale  cannot  sell. (5')  The 
committee  of  a  lunatic  cannot  make  repairs. (/•)  An  executor  cannot  pay 
debts, (s)  nor  deal  with  the  assets  for  the  purpose  of  investment.(/) 

A  suit  in  which  a  bill  merely  has  been  filed  is  to  be  distinguished  from 
one  in  which  a  decree  has  been  made,  for  until  a  decree  the  plaintiff  may 
dismiss  his  bill  at  any  moment  and  should  he  do  so,  the  progress  of  the 
trust  may  have  been  arrested  for  no  purpose. (m)  However,  even  in  this 
case  the  trustees  cannot  be  advised  to  act  without  first  consulting  the 
court,  and  if  by  acting  independently  of  the  court  expenses  be  incurred 
which  might  have  been  avoided  had  the  trustees  applied  to  the  court 
they  may  be  made  to  bear  them  personally. Tv) 


SECTION  n. 

THE   SPECIAL   POWERS   OF  TRUSTEES. 

Upon  this  branch  of  our  subject  we  shall  consider,  First,  The  different 
kinds  of  powers ;  Secondly,  The  construction  of  powers ;  Thirdly,  The 
effect  of  disclaimer,  assignment  of  the  estate,  and  survivorship  among  the 
trustees  j  and  Fourthly,  The  control  of  the  court  over  the  exercise  of 
powers. 

I.  Of  the  different  kinds  of  powers. 

In  applying  the  doctrine  of  powers  to  the  subject  of  trusts  *it  r^r.9P.-\ 
may  be  useful  to  regard  powers  as  either  legal  or  eqxdtable  :  the  L  "  J 
former  such  as  operate  upon  the  legal  estate,  and  so  are  matter  of  cogni- 
zance to  courts  of  common  law ;  the  latter,  such  as  affect  the  equitable 
interest  only,  and  so  fall  exclusively  under  the  notice  of  courts  of  equity. 
Thus,  if  lands  be  limited  to  the  use  of  A.  for  life,  remainder  to  B.  and 
his  heirs,  and  a  power  operating  under  the  statute  of  uses  be  given  to  C, 
the  execution  of  the  power  works  a  conveyance  of  the  legal  estate  :  but 
if  lands  be  limited  to  the  use  of  A.  and  his  heirs  upon  trust  for  B.  for 

(0)  Mitchelson  t.  Piper,  8  Sim.  64 ;  Shewen  v.  Yanderhorst,  2  R.  &  M.  75 ;  S. 
C.  ailirmed,  1  R.  &  M.  347. 

{p)  See  Jones  v.  Powell,  4  Bear.  96. 

\q)  Walker  v.  Smalwood,  Amb.  67G ;  Annesley  v.  Asburst,  3  P.  W.  282. 

(r)  Anon,  case,  10  Ves.  104. 

(s)  Mitcbelson  v.  Piper,  8  Sim.  64;  and  see  Jackson  v.  Woollej-,  12  Sim.  13. 

{t)  Widdowson  v.  Duck,  3  Mer.  494. 

(m)  Cafe  V.  Bent,  3  flare,  249 ;  Neeves  v.  Burrage,  14  Q.  B.  R.  504. 

{v)  Attorney-General  v.  Clack,  1  Beav.  467 ;  and  see  Cafe  v.  Bent,  3  Hare,  249. 


440       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

life,  remainder  upon  trust  for  C.  and  his  heirs,  and  a  power  not  operating 
under  the  statute  of  uses  be  given  either  to  the  trustee  or  to  the  cestui 
que  trust,  the  execution  of  such  a  power  will  have  no  effect  at  law,  but 
will  merely  serve  to  transfer  the  beneficial  interest  in  equity,  and  may 
therefore  be  designated  by  the  name  of  an  equitable  power. 

An  equitable,  the  same  as  a  legal  power,  may  be  either  annexed  to  the 
estate  or  be  simply  collateral;  but  whether  it  shall  be  taken  as  the  one 
or  the  other  will  depend  on  the  question,  whether  the  donee  of  the  power 
be  possessed  of  the  equitable,  that  is,  of  the  heneficial  interest,  or  not. 
Thus,  where  a  testator  devised  to  his  sister  and  her  heirs  for  ever,  with 
a  direction  to  settle  the  property  on  such  of  the  descendants  of  the  testa- 
tor's mother  as  his  sister  should  think  fit,  and,  the  devisee  having  married, 
the  question  was  raised  whether  the  execution  of  the  power  by  her,  as 
she  was  under  coverture  at  the  time,  was  to  be  considered  as  valid.  Lord 
Hardwicke  said,  "It  is  objected  that  z.  feme  covert  cannot  execute  a 
power,  and  that  there  are  no  words  in  the  will  authorising  her  to  do  so ; 
but  this  is  a  power  loithout  an  interest,  and  is  improperly  called  a  power, 
for,  being  a  direction  to  a  person  who  has  the  fee,  it  is  rather  a  trust. "(?t') 
On  the  other  hand,  where  the  legal  estate  was  devised  to  trustees  upon 
trust  for  an  infant  feme  covert  for  her  sole  and  separate  use  during  her 
life,  and  upon  trust  to  permit  her  by  deed  or  writing  executed  in  the  pre- 
sence of  three  or  more  witnesses,  notwithstanding  her  coverture,  to  dis- 
pose of  the  estate  as  she  should  think  fit,  and  the  testator  died  leaving 
P^rpo-.  the /erne  covert  his  heir  at  law,  and  *she  during  the  continuance 
L  "^  -I  of  the  coverture  and  infancy,  exercised  the  power  by  will.  Lord 
Hardwicke,  upon  the  question  whether  the  power  had  been  duly  executed, 
observed,  "  This  is  a  power  coupled  witli  an  interest,  which  is  always 
considered  different  from  naked  powers.  It  was  admitted  that  if  this 
execution  was  to  operate  on  the  estate  of  the  infant,  it  might  not  be 
good  :  now  this  is  clearly  so,  for  she  had  the  trust  in  equity  for  life, 
with  the  trust  of  the  inheritance  in  her  in  the  mean  time,  which  would 
remain  in  herself,  if  undisposed  of,  and  descend  to  her  heir;  so  that  this 
is  directly  a  power  over  her  own  inheritance,  which  cannot  be  executed 
by  an  infant."(u:^) 

Again,  powers,  in  the  sense  in  which  the  term  is  commonly  used,  may 
be  distributed  into  mere  powers,  and  powers  coupled  with  a  trust.(y\  The 
former  are  powers  in  the  proper  sense  of  the  word ;  that  is,  not  impera- 
tive, but  purely  discretionary  ;  powers  which  neither  the  trustee  can  be 
compelled  to  execute,  nor,  on  failure  of  the  trustee,  can  be  executed  vica- 
riously by  the  court.  The  latter,  on  the  other  hand,  are  not  arbitrari/, 
but  imp)erative,  have  all  the  nature  and  substance  of  a  trust,  and  ought 
rather,  as  Lord  Hardwicke  observed,  to  be  designated  by  the  name  of 
trusts. (2)     '<  It  is  perfectly  clear,"  said  Lord  Eldon,  "  that  where  there  is 

(w)  Godolphin  v.  Godolphin,  1  Ves.  21. 

{x)  Hearle  v.  Greenbank,  1  Ves.  298,  see  306 ;  and  see  Blithe's  case,  Freem.  91; 
Penne  v.  Peacock,  For.  43. 

(y)  See  Gower  v.  Mainwaring,  2  Ves.  89;  Cole  v.  Wade,  IG  Ves.  43;  Hutchin- 
son V.  Hutchinson,  13  Ir.  Eq.  Rep.  332. 

(z)  Godolphin  v.  Godolphin,  1  Ves.  23. 


THE    POWERS    OF    TRUSTEES,  441 

a  mere  power,  and  that  power  is  not  executed,  the  court  cannot  execute 
it.  It  is  equally  clear,  that  wherever  a  trust  is  created,  and  the  execu- 
tion of  the  trust  fails  by  the  death  of  the  trustee  or  by  accident,  this 
court  will  execute  the  trust.  But  there  are  not  only  a  mere  trust  and  a 
mere  power,  but  there  is  also  known  to  this  court  a  power  tchich  the 
part;!/  to  lohom  it  ix  (/iven  is  entrusted  and  required  to  executed;  and, 
with  regard  to  that  species  of  power,  the  court  considers  it  as  partaking 
so  much  of  the  nature  and  qualities  of  a  trust,  that  if  the  person  who 
has  the  duty  imposed  upon  him  does  not  discharge  it,  the  court  will,  to 
a  certain  extent,  discharge  the  duty  in  his  room  and  place. (a) 

Again,  powers  have  been  dealt  with  by  the  court  as  either  of  r*r97-i 
a  strict  or  of  a  directory  character  :  the  former  such  as  can  only  L  ^  J 
arise  under  the  exact  circumstances  prescribed  by  the  settlement ;  the 
latter,  such  as  being  merely  monitory,  may  be  taken  with  a  degree  of 
latitude.  Thus,  where  an  advowson  was  vested  in  trustees  upon  trust  to 
elect  and  present  a  fit  person  loithin  six  months  from  the  incumbent's 
decease,  it  was  considered  the  clause  was  directory,  and  that  the  trustees 
might  equally  elect  and  present,  although  that  period  had  elapsed. (Z/) 
So  where  six  trustees  were  empowered  u-'hen  reduced  to  three  to  substi- 
tute others,  and  all  died  but  one,  it  was  held  competent  to  the  sole  sur- 
vivor to  fill  up  the  number. (c)  And  where,  in  the  case  of  twenty-five 
trustees,  the  direction  was,  that  when  reduced  to  fifteen  the  survivors 
should  nominate,  it  was  determined  by  the  court  that,  although  seven- 
teen remained,  the  survivors  were  at  liberty  to  exercise  their  power,  but 
that,  when  reduced  to  only  fifteen,  they  were  compcllahle  to  do  so.(fZ) 

These  were  cases  of  charitable  trusts,  in  which  it  seems  a  greater  lati- 
tude of  construction  is  allowed.  But  in  another  case,  where  the  trusts 
were  not  charitable,  estates  were  devised  to  trustees  upon  trust  to  sell 
"  with  all  convenient  speed,  and  -^'ithm  five  years,"  and  it  was  held  that 
these  words  were  directory  only,  and  that  the  trustees  could  sell  and 
make  a  good  title,  although  the  five  years  had  expired. (e) 

II.  We  proceed  to  consider  the  construction  of  powers.  As  the 
powers  of  trustees  are  regulated  by  the  doctrines  applicable  to  powers 
in  general,  we  shall  advert  only  to  a  few  cases  of  most  frequent  occur- 
rence. 

If  a  power  be  given  to  "A.  and  B.  and  their  heirs,"  it  is  perfectly 
clear  that  the  words  are  not  to  be  understood  to  this  extent,  that,  as  the 
limitation  of  an  estate  in  such  terms  would  so  vest  it  in  the  grantees 
that  they  might  convey  it  to  a  stranger,  and  the  survivor  devise  it,  the 
power  is  to  be  *construed  as  intended  in  like  manner  to  be  r*59g-| 
assignable  and  devisable. (/)  ^ 

Upon  the  subject  of  such  a  power  we  have  the  following  pointed 

(a)  Brown  v.  Higgs,  8  Ves.  570. 

(b)  Attorney-General  v.  Scott,  1  Ves.  413,  see  415. 

(c)  Attornej'-Gencral  v.  Flover,  2  Vern.  748 ;  and  see  Attorney-General  v.  Bishop 
of  Lichfield,  5  Ves.  825  ;  Attorney-General  v.  Cuming,  2  Y.  &  C.  Cli.  Cn.  13»  ;  but 
see  Foley  v.  Wontner,  2  Jac.  &  Walk.  245. 

{d)  Doe  V.  Roe,  1  Anst.  86. 

(e)  Pearce  v.  Gardner,  10  Hare,  287;  and  see  Cuff  v.  Hall,  1  Jur.  N.  S.  973. 

(/)  Cole  V.  Wade,  16  Ves.  46,  per  Sir  W.  Grant. 


442  LEW  IN    ON    THE    LAW    OF    TRUSTS,    ETC. 

remarks  of  Lord  Chief  Justice  Wilmot :  "  It  is  asked/'  he  said,  "  what 
must  become  of  the  power  upon  the  death  of  one  of  the  trustees.  It  must 
be  considered  as  a  tenancy  in  common.  Had  the  words  been  <  their 
several  and  respective  heirs/  it  would  have  been  clear ;  and  in  common 
parlance,  and  according  to  the  common  apprehension  of  mankind,  when 
an  estate  is  given  to  two  men  and  their  heirs,  no  one  not  illumined  with 
the  legal  nature  of  joint-tenancy  could  ever  conceive  the  estate  was  to  go 
to  the  heirs  of  the  survivor.  It  is  equivalent  to  saying,  With  consent  of 
Loth  loliile  they  live  ;  hut  ivhen  one  dies,  that  consent  shall  devolve  upon 
his  heir;  the  heir  of  the  dead  trustee  shall  consent  as  toell  as  the  surviving 
trustee.  One  may  abuse  the  power  ;  I  will  supply  the  loss  of  one  by  his 
heir,  and  the  loss  of  both  by  the  heirs  of  both. {(j^ 

In  Townsend  v.  Wilson(^j  a  power  of  sale  was  given  to  three  trustees 
and  their  heirs  ;  and  it  was  directed  that  the  money  to  arise  from  the 
sale  should  be  paid  into  the  hands  of  the  trustees,  or  the  survivors  or 
survivor  of  them,  and  the  executors,  administrator,  or  assigns  of  such 
survivor,  and  there  was  a  power  of  appointment  of  new  trustees,  with  a 
direction  such  appointment  should  take  place  as  often  as  any  one  or  more 
of  the  trustees  should  die,  &c.  One  of  the  trustees  died,  and  it  was 
determined  by  the  Court  of  Queen's  Bench,  that  the  survivors  alone  were 
incapable  of  exercising  the  power. 

Lord  Eldon  expressed  himself  dissatisfied  with  this  decision,  and 
asked,  "  Did  the  Court  of  Queen's  Bench  consider  that  the  two  surviving 
trustees  and  the  heir  of  the  deceased  trustee  were  to  act  together  ?  for  it 
was  one  thing  to  say  that  the  survivors  could  not  act  until  another  ivas 
appointed ;  and  a  diiferent  thing  to  say,  the  heir  of  the  deceased  trustee 
^  ^  ^  could  act  in  the  meantime. "(/)  No  reasons  were  given  by  the 
L  "  J  *court  for  their  judgment,  and  it  is  difficult  to  collect  on  what 
grounds  it  proceeded. (7^-) 

In  Hewett  v.  Hewett,(Z)  a  testator  devised  his  estate  to  four  persons  to 
uses  in  strict  settlement,  with  a  power  to  the  tenants  for  life,  when  in 
actual  possession,  to  cut  such  trees  as  the  four  devisees  to  uses,  or  the 
survivors  or  survivor  of  them  (omitting  the  words  "  and  the  heirs  of  the 
survivor")  should  direct  5  and  all  the  trustees  being  dead,  the  question  was 
whether  the  power  was  gone.  Lord  Henley  held,  that  upon  the  construc- 
tion of  the  will,  the  testator  intended  the  power  to  be  co-extensive  with 
the  life  estates,  and  that  the  trustees  were  interposed,  as  supervisors  only, 
to  prevent  destruction  ;  and  that  the  ofiice  of  the  trustees  was  not  personal, 
but  such  as  might  be  executed  by  the  court.  He,  therefore,  considered 
the  power  as  subsisting,  and  referred  it  to  the  master  to  inquire  what 
timber  was  fit  to  be  cut.  In  this  view  of  the  case  the  court  did  not 
regard  the  authority  to  the  trustees  as  a  mere  power,  but  as  a  trust. 

It  still  remains  to  be  decided  how  powers,  in  the  strict  sense,  limited 
"  to  trustees  and  their  heirs"  are  to  be  construed. 

Though  where  a  discretionary  ler/cd power  is  expressly  limited  to  "  A. 

{g)  Mansell  v.  Vtvughan,  Wilm.  50,  51. 

{h)  1  B.  &  Aid.  608,  3  Mad.  261  ;  and  see  Cooke  v.  Crawford,  13  Sim.  91. 

(j)  Hall  V.  Dewes,  Jac.  193 ;  and  see  Jones  v.  Price,  11  Sim.  557. 

\lc)  Sugd.  Pow.  490,  6th  ed.  {I)  2  Edeu,  332,  Amb.  508. 


THE    POWERS    or    TRUSTEES.  443 

and  his  assigns,"  the  grantee  or  devisee  of  A.,  and  even  a  claimant 
under  him  by  operation  of  law  as  an  heir  or  executor,  may  exercise  the 
power  ;(m)  yet  in  a  trust,  if  an  estate  be  vested  in  a  trustee  upon  trust 
that  he,  his  heirs,  executors,  administrators  or  assigns  shall  sell,  etc.,  the 
introduction  of  the  word  assigns  will  not  authorise  the  trustee  to  assign 
the  estate  to  a  stranger,(?i)  nor  will  the  stranger  be  capable  of  exercising 
the  power. (o) 

But  in  a  mortgage,  with  a  power  of  sale  limited  to  the  mortgagee,  his 
heirs,  executors,  administrators  and  assigns,  the  intention  is  that  the 
power  should  go  along  with  and  be  annexed  to  the  security  :  and,  there- 
fore, if  the  mortgage  be  assigned  to  a  stranger,  and  the  legal  estate  be 
'  conveyed  to  the  stranger  or  to  a  trustee  for  him,  the  stranger  alone  or 
with  the  ^concurrence  of  the  trustee,  can  give  a  good  legal  and  r*53Q-| 
equitable  title  -,{00)  and  even  if  a  mortgage  be  made  to  A.  and  B.  L  -• 
to  secure  a  joint  advance,  and  the  power  of  sale  and  signing  receipts  be 
limited  to  A.  and  B.,  their  heirs  and  assigns,  it  has  been  held  that  as 
the  power  and  the  security  were  plainly  meant  to  be  coupled  together, 
and  the  security  enures  to  the  benefit  of  the  survivor,  (the  advance 
being  a  joint  one,)  the  survivor  may  also  sell.(25) 

If  a,  power  indicating  personal  confidence  be  given  to  a  "  trustee  and 
his  executors,"  and  the  executor  of  the  trustee  die  having  appointed  an 
executor,  the  latter  executor,  though  by  law  the  executor  not  only  of  his 
immediate  testator  but  also  of  the  trustee,  will  not,  it  has  been  thought. 
be  so  considered  for  the  purposes  of  the  power.(2)  A  matter  of  personal 
confidence  is  not  extended  beyond  the  express  words  and  clear  intention 
of  the  settlor;  and  in  this  case,  the  settlor  may  have  meant  the  power  to 
be  exercised  exclusively  by  the  executors,  whom  the  trustee  should  him- 
self name,  and  not  by  a  person  who  is  executor  of  the  trustee  by  opera- 
tion of  law  only. 

A  power  limited  to  "  executors"  or  "  sons  in  law"  may  be  exercised 
by  the  survivors  so  long  as  the  plural  number  remains  ;(?•)  and  if  a 
power  be  limited  to  "trustees"  we  may  reasonably  conclude  it  may  be 
exercised  by  the  surviving  trustees.  And  a  power  given  to  "  executors" 
will,  if  annexed  to  the  executorship,  be  continued  to  the  single  sur- 
vivor ;(s)  and  so  a  power  given  to  "trustees"  will,  as  annexed  to  the 
office,  be  exercisable  by  the  survivor.(/)  But,  of  course,  not  by  one  of 
the  trustees  in  the  lifetime  of  the  other  who  has  not  efi'ectually  dis- 


(m)  How  V.  Whitfield,  1  Vent.  338,  339  ;  1  Freem.  4T6. 

(ft)  The  case  of  Hardwick  v.  Mynd,  1  Aust.  109,  cannot  in  this  respect  be  sup- 
ported. 

(0)  See  pp.  266,  267,  supra.     {00)  Saloway  v.  Strawbridgc,  1  Kay  &  Johns.  371. 
(p)  Hind  V.  Poole,  1  Kay  &  Johns.  383. 

(q)  See  Cole  v.  Wade,  IG  Ves.  44;  Stile  v.  Tomson,  Dyer,  210  a;  Perk.  sect. 
552  ;  and  see  1  Sug  Pow.  145,  6th  Ed. 

(r)  1  Sug.  Powers,  144,  6th  Ed. 

(s)  1  Sug.  Powers,  144,  6th  Ed.  Eouell  v.  Barnes,  Cro.  Car.  382  ;  Brassey  T. 
Chalmers,  4  De  Gex,  M.  &  G.  528,  reversing  the  decision  of  the  master  of  the  rolls, 
16  Beav.  231. 

[1)  Lane  v.  Debcnham,  17  Jur.  1005. 


444       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

claimed. (tt)     And  if  a  power  be  communicated  to  "  the  trustees  for  the 
time  being"  of  a  will,  it  cannot  be  exercised  by  a  single  trustee. (z;) 

*A  power  to  four  trustees  "and  the  survivors  of  them,"  can- 
L  '  J  not,  it  seems,  be  executed  by  the  last  survivor  ;(i/;)  for  though  a 
power  to  trustees  may,  in  general,  be  held  to  survive,  an  intention  to  the 
contrary  may  here  be  fairly  inferred :  the  settlor  may  be  supposed  to  have 
said,  "  I  repose  a  confidence  in  any  two  of  the  trustees  jointly,  but  in 
neither  of  them  individually."  But  if  a  power  be  limited  to  four  trus- 
tees ''and  the  aurvivor  of  them/'  it  maybe  argued,  that  on  the  death  of 
one  the  power  may  still  be  exercised  by  the  survivors ;  for  there  can  be 
no  valid  reason  why  a  person  who  trusted  the  four  jointly,  and  each  of 
them  individually,  should  refuse  to  repose  a  confidence  in  the  survivors 
for  the  time  being. (x)  However,  it  is  a  question  of  intention  upon  the 
construction  of  the  instrument,  and  a  'priori  reasoning  cannot  be  relied 
upon  without  a  decision. 

In  Trower  v.  Knightley(y)  a  testator  devised  an  estate  to  trustees  upon 
trust  as  to  one  moiety  for  A.  for  life,  remainder  to  her  children  at  twenty- 
one,  and  as  to  the  other  moiety  for  13.  for  life,  remainder  to  her  children 
at  twenty-one,  and  gave  the  trustees  a  power  of  sale  "  during  the  con- 
tinuance of  the  trust."  A.  died,  and  her  children  attained  twenty-one, 
and  the  question  was,  whether  the  trustees  could,  under  the  power,  sell 
the  whole  estate,  the  children  of  B.  being  infants.  The  vice-chancellor 
held,  that  if  the  children  of  A.  could  call  for  a  present  conveyance  of 
their  moiety  it  would  have  the  effect  of  depriving  B.  and  her  children 
of  the  benefit  of  the  power  of  sale,  and  also  of  the  leasing  power  given 
to  the  trustees,  for  that  an  undivided  moiety  could  not  advaniageously  be 
sold  or  leased,  and  that  the  testator  must  have  meant  to  continue  the 
powers  of  ownership  to  the  trustees  until  there  were  owners  competent 
to  deal  with  the  whole  estate. 

But  if  a  power  be  given  to  trustees  to  be  exercised  "  during  the  con- 
tinuance of  the  trust,"  it  cannot  be  exercised  after  the  time  when  the 
j.^ron-1  trust  oufjlit  to  have  been  completed,  though,  from  *the  delay  of 
L  -I  the  trustees,  it  happens  that  the  trust  has  not  in  fact  been  exe- 
cuted. (;;) 

III.  Of  the  effect  of  disclaimers  assignment,  and  survivorship  of  the 
estate. 

First.  If  a  power  be  given  to  co-trustees,  and  one  of  them  disclaim, 
the  power  may  be  exercised  by  the  continuing  trustee  or  trustees. 

Jenkins  observes,  «  If  a  testator  devise  that  A.  and  B.  shall  sell,  and 
near  the  end  of  the  will  he  names  them  executors,  if  one  refuses  at 

(m)  Lancashire  v.  Lancashire,  2  I'liill.  6C4. 

(v)  Lancashire  v.  Lancashire,  2  PliilL  57G;   1  De  6.  &  Sm.  288. 

[w)  ITiVjbard  v.  Larnbe,  Amb.  309.  Note,  further  directions  were  declared 
necessary  on  tlie  death  of  cilhcr  of  the  surviving  executors.  See  Eaton  v.  Smith, 
2  Beav.  23G. 

{%)  See  Crewe  v.  Dickcn,  4  Ves.  97 ;  in  which  case  it  seems  to  have  been  as- 
sumed that  the  receipt  of  the  survivors  would  have  been  a  suflicient  discharge. 

M  0  Mad.  134. 

[z)  Wood  V.  White,  2  Keen,  664.  It  was  determined  on  appeal  that  the  trusts 
in  this  case  were  still  in  being,  4  M.  &  Cr.  460. 


THE    POWERS    OF    TRUSTEES.  445 

common  law,(o)  or  dies,  the  other  may  sell,  for  the  potrer  is  anncjr^d  to 
the  ejcecutorship ;''{b)  and  in  the  instance  of  trustees,  it  may  equally  be 
arffued  that  although  given  to  persons  by  uavie,  the  power  is  anuesed  to 
the  trusteeship. 

And  of  this  opinion  apparently  was  Lord  Loughborough  in  the  case 
of  Crewe  v.  Pioken  -Ac)  for  a  power  of  signing  receipt^:  having  been  lim- 
ited to  three  trustees  by  name,  and  one  of  them  being  dead,  his  lordship 
remarked,  <»  If  A.  B.  (one  of  the  survivors.)  had  rtnounccd,"  (that  is, 
had  disclaimed  instead  of  constructively  accepting  the  trust  by  the  exe- 
cution of  a  contci/anc(.\  "the  whole  estate  would  have  been  in  the  con- 
tinuins  trustee  exactly  as  if  the  two  other  trustees  had  died  in  the  life 
of  the  testator;"  and  it  is  evident  from  the  context  that  his  lordship 
meant  to  extend  the  observation  to  the  power  of  signing  receipts. 

In  Hawkins  v.  Kemp, ((f)  a  purchaser  at  first  objected  that  the  accept- 
ing trustees  could  not  exercise  the  power,  or  not  without  the  appoint- 
ment of  a  new  trustee  in  the  place  of  the  trustee  who  had  disclaimed, 
but  the  point  was  afterwards  abandoned  by  the  purchaser's  counsel  as 
untenable. 

*And  Adams  v.  Tauutou((')  is  a  direct  decision  by  Sir  J.  Leach  r*:^.-..^-i 
to  the  same  effect.  A  testator  had  devised  his  estates  to  A.  and  L  "^ '  "^  J 
B.  upon  trust  to  sell  and  apply  the  proceeds  amongst  his  children,  and 
declared  that  the  receipts  of  the  s;nd  A.  and  B.  should  be  sufficient  dis- 
charges. A.  renounced,  and  Sir  J.  Leach,  after  having  taken  time  to 
consult  the  authorities,  said.  "  It  being  now  settled  that  a  devise  to  A., 
B.,  and  C,  upon  trust,  is  a  good  devise  to  such  of  the  three  as  accept 
the  trust,  it  follows  by  necessary  construction  that  by  the  receipts  of 
the  trustees  is  to  bo  intended  the  receipt  of  those  who  accept  the 
trust. '■(/■) 

If  the  power  be  not  given  to  the  trustees  by  name,  but  to  the  -  trus- 
tees" or  ''executors;"  it  is  clear,  a  fortiori,  that  if  one  disclaim  the 
acting  trustees  or  executors  may  exercise  the  power. (7) 

Secondly.  As  to  the  eftect  of  assitjnment  of  the  estate,  it  is  certain 
that  the  power  is  not  appendant  to  the  estate,  so  as  to  follow  along  with 
it  in  every  transfer  by  the  party,  or  devolution  by  course  of  law. (A)    But 

(a)  That  is,  independeutly  of  21  H.  S,  c.  4,  which,  upon  a  refusal  by  one  exe- 
cutor, authorized  a  sale  bv  the  co-executor. 

(6)Jenk.  44.  "  (r)  4  Yes.  07.  ,^,^ 

(d)  3  East.  410.  "I  have  always  understood,  said  the  late  V.  C.  of  England, 
ever  since  the  point  was  decided  in  Hawkins  v.  Kemp,  or  rather  was,  as  the  judges 
said  in  that  case,  properly  abandoned  by  the  defendant's  counsel  as  not  capable 
of  beinir  contended  for.  that  where  two  or  more  persons  are  appointed  trustees, 
and  all  of  them,  except  one,  renounce,  the  trust  may  be  executed  by  that  one." 
Cooke  v.  Crawford.  13  Sim.  90. 

(c)  5  Mad.  435  ;  and  sec  Bayly  v.  Cumming,  10  Ir.  Eq.  Re.  410  ;  Cooke  v.  Craw- 
ford, 13  Sim.  96;  Sands  v,  Ncgce,  append.  No.  viii.  S.  C.  8  Sim.  130. 

(/)  From  his  honour's  words,  ••  the  receipts  of  the  trustees,"  it  might  be  thought 
the  power  had  been  given,  not  to  A.  and  B.  by  name,  but  to  "  the  trustees  :"  the 
R.  L.  has  been  consulted,  and  it  appears,  as  stated  in  the  report,  that  the  power 
was  given  to  "the  said  A.  and  B." 

(g)  Worthington  v.  Evans,  1  S.  &  S.  165;-Boyce  v.  Corbally,  Rep.  t.  Plunket, 
102;  and  see  Clarke  v.  Parker.  19  Yes.  1. 

(h)  Cole  V.  \Yado.  IG  Yes.  47,  per  Sir  W.  Grant;  Crewe  v.  Dicken,  4  Ves.  97; 
March,  1858.-29 


446       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

where  the  estate  is  duly  transferred  to  persons  regularly  appointed  trus- 
tees under  a  power  in  the  settlement  creating  the  trust,  the  transferrees, 
of  course,  take  the  estate  and  the  office  together,  and  can  exercise  the 
powers.  Where  the  settlement  contains  no  such  power,  it  seems  that 
the  appointment  of  new  trustees  by  the  court  will  not  communicate  spe- 
cial discretionary  or  arbitrary  powers,(r)  unless  they  be  limited  to  the 
trustees  for  the  time  being,(A;)  or  be  otherwise  in  fair  construction  an- 
nexed to  the  office.  (^?) 

^^  ^  *We  have  seen  that  if  one  trustee  disclaim  in  the  strict  sense 
L  '-"^  J  of  the  word,  the  power  will  not  be  extinguished,  but  will  sur- 
vive to  the  co-trustee ;  but,  according  to  the  old  doctrine,  if  a  trustee, 
instead  of  disclaiming  had  released  the  estate,  that  was  a  virtual  accept- 
ance of  the  trust,  and  then  the  conveyance  of  the  retiring  trustee  did 
not  pass  the  power  into  the  hands  of  the  continuing  trustee  ;(m)  but  at 
the  present  day  it  seems  a  release  with  the  intention  of  disclaimer  would 
have  all  the  operation  of  a  formal  and  actual  disclaimer.  (71) 

Though  an  assignment  of  the  estate  will  not  carry  the  power  to  the 
assignee,  it  does  not  follow  that  the  power  will  remain  in  the  assignor; 
for  where  it  was  the  settlor's  intention  that  the  estate  and  power  should 
be  coupled  together,  the  trustee,  by  severing  the  union  through  the  alien- 
ation of  the  estate,  ceases  to  be  the  person  intended  to  execute  the  power. 
Thus,  if  an  estate  be  limited  to  A.  and  his  heirs  upon  a  trust  to  be  exe- 
cuted by  A.  and  his  heirs,  and  A.,  in  his  lifetime,  conveys  away  the 
estate,  or  devises  it  by  his  will,  A.,  the  alienor  or  his  heir,  cannot  now 
execute  the  power.(o)  The  heir,  indeed,  is  no  heir  quateniis  this  estate; 
for  it  was  not  allowed  to  descend,  but  was  devised  away  from  the  person 
who  would  have  been  heir.  But  compare  the  subsequent  discussion,  at 
page  567,  upon  the  question  how  far  a  trustee  becomes  such  before  the 
transfer  to  him  of  the  trust  estate. 

Upon  a  similar  principle,  in  Cole  v.  Wade,(j5)  where  the  power  was 
given  to  the  trustees,  and  the  heirs,  executors,  and  administrators  of  the 
survivor,  it  was  held,  that  on  the  death  of  the  survivor  the  power  was 
extinguished.  The  circumstances  were  these :  A  testator  gave  the 
residue  of  his  real  and  personal  estate  to  Piuddle  and  Wade  (whom  he 
appointed  his  executors,)  their  executors,  administrators,  and  assigns, 
aud  directed  his  said  trustees  and  executors,  after  making  certain  pay- 
ments thereout,  to  convey  and  dispose  of  the  said  residue  of  his  real  and 
personal  estate  unto  and  amongst  such  of  his  relations  and  kindred  in 

Re  Burtt's  Estate,  1  Drewry,  319  ;  Wilson  v.  Bennett,  5  De  Gex  &  Sm.  475.  The 
case  of  Hardwick  v.  Mynd,  1  Anst.  109,  is  an  anomaly. 

(i)  Doyley  v.  Attorney-General,  2  Eq.  Ca.  Ab.  194  ;  Fordyce  v.  Bridges,  2  Phill. 
497  ;  Newman  v.  Warner,  1  Sim.  N.  S.  457  ;  and  see  Cole  v.  Wade,  16  Ves.  44,  47  ; 
Hibbard  t.  Lambe,  Amb.  309. 

(k)  Hartley  v.  Hartley,  3  Drew.  384 :  Brassey  v.  Chalmers,  4  De  Gex,  M.  &  G. 
528. 

{I)  Byam  v.  Byam,  19  Beav.  66. 

(m)  Doyley  V.  Attorney-General,  2  Eq.  Ca.  Ab.  194;  Crewe  v.  Dicken,  4  Ves.  97. 

(n)  Supra,  p.  233. 

(0)  Wilson  V.  Bennett,  5  De  Gsx  &  Sm.  475  ;  and  see  Re  Burtt's  Estate,  1 
Drew.  319. 

(/>)   16  Ves.  27. 


THE    POWERS    OF    TRUSTEES.  447 

such  proportions,  manner,  and  form,  as  his  said  executors  should  think 
proper,  his  intention  being  that  everything  relating  to  that  disposition 
should  be  entirely  *in  the  discretion  of  (he  said  trustees  and  r*xQ;j-] 
executors,  and  the  heirs,  executors,  and  administrators  of  the  "-         -• 
survivor  of  them  ;  and  the  testator  directed  his  said  trustees  and  execu- 
tors and  the  survivor  of  them,  and  the  heirs,  executors,  and  administra- 
tors of  the  survivor  of  them  to  mortgage  or  sell  the  said  residue,  or  such 
part  thereof  as  they  iu  their  discretion  should  think  proper;  the  testator 
meaning  to  leave  it  in  the  discretion  of  his  said  trustees  and  executors  to 
convey  unto  his  relations  the  said  residue  in  such  manner  and  form  as 
his  said  trustees  should  think  proper ;  and,  lastly,  he  directed  that  the 
said  Ruddle  and  Wade,  or  the  survivor  of  them,  or  the  heirs,  executors, 
or  administrators  of  such  survivor,  should  make  the  division  within 
fifteen  years  from  the  testator's  decease.     Wade,  the  survivor,  devised 
and  be({ueathed  the  real  and  personal  estate  of  the  testator  to  William 
and  Edward  Bray,  their  heirs,  executors,  administrators,  and  assigns, 
upon  the  trusts  of  the  will,  and  named  them  his  executors  for  that  spe- 
cific purpose  only,  appointing  his  wife  and  another  person  executors  as 
to  his  own  estates.     The  question  was  agitated,  whether  William  and 
Edward  Bray  could  exercise  the  power  of  distribution  among  the  rela- 
tions.   Sir  W.  Grant  said,  '<The  original  trustees  and  executors  were  the 
same  persons;  all  the  real  and  personal  estate  was  vested  equally  in 
them;  but  the  heirs  and  executors  of  the  surviving  trustee  might  be 
difi"erent  persons :  yet  all  the  directions  about  the  distribution  of  the 
residue  proceed  upon  the  supposition  that  the  same  persons  are  to  select 
the  objects  and  settle  the  proportions  in  which  they  are  to  take ;  but  if 
the  real  estate  is  to  go  to  one,  and  the  personal  estate  to  another,  the  tes- 
tator has  left  it  entirely  uncertain  how  the  power  is  to  be  executed. 
Whether  the  Messrs.  Bray  can  in  any  sense  be  the  executors  of  Wade, 
with  whose  own  property  they  are  not  to  intermeddle,  it  is  not  material 
to  determine."     His  honor,  therefore,  decided,  that  the  power  had  be- 
come extinguished. 

But,  of  course,  the  estate  and  the  power,  though  originally  intended 
to  be  in  the  same  hands,  may  be  vested  in  different  persons  with  the 
sanction  of  the  court,  where  the  Intentions  of  the  settlor  cannot  other- 
wise be  conveniently  efi'ected.  Thus  a  testator  gave  a  sum  of  money  to 
be  invested  in  the  funds  in  the  names  of  the  head  of  a  college  at  Oxford, 
the  junior  bailiff  *of  the  city,  and  the  elder  churchwarden  of  a  r*53g-| 
parish,  the  dividends  to  be  applied  to  certain  purposes  as  the  L  J 
trustees  should  approve.  The  bailiff  and  churchwarden  being  annual 
ofl&cers,  the  Investment  as  directed  by  the  will  would  have  been  accom- 
panied with  frequent  transfers  of  the  stock  :  the  court  therefore  ordered 
that  the  money  should  be  Invested  in  the  names  of  two  new  trustees 
jointly  with  the  head  of  the  college,  but  that  the  objects  of  the  charity 
should  be  nominated  and  approved  in  the  manner  pointed  out  by  the 
will. (5) 

Thirdly.  As  to  survivorship.     The  survivorship  of  the  estate  carries 

{q)  Ex  parte  Blackburue,  1  J.  &  W.  297  :  aud  see  Hibbard  v.  Lambc,  Amb.  300. 


448       LEW  IN  ON  THE  LAW  OF  TRUSTS,  ETC. 

with  it  the  survivorship  of  such  powers  as  are  annexed  to  the  trust.  If 
a  mere  power  be  given  to  A.,  B.,  and  C,  and  one  of  them  die,  it  is  per- 
fectly clear  that  the  power  cannot  be  exercised  by  the  survivors;  but  if 
trustees  have  an  eqv italic  power  annexed  to  the  trust,  as  if  an  estate  be 
vested  in  three  trustees  upon  trust  to  sell,  then  as  the  power  is  coupled 
with  an  interest,  and  the  interest  survives,  the  power  also  survives.(r) 

The  principle  that  trust  powers  survive  with  the  estate  appears  to  be 
as  old  as  the  time  of  Lord  Coke,  for  he  observes,  "  If  a  man  deviseih 
land  to  his  executors  to  he  sold,  and  maketh  two  executors,  and  the  one 
dieth,  yet  the  survivor  may  sell  the  land,  because  as  the  estate,  so  the 
trust  shall  survive;  and  so  note  the  diversity  between  a  hare  trust  and  a 
trust  coupled  with  an  interest." {s)  At  the  present  day  a  trust,  that  is,  a 
potoer  imperative,  whether  a  bare  power,  or  a  power  coupled  with  an  in- 
terest, would  equally  be  carried  into  execution  in  the  forum  of  a  court 
of  equity ;  for  the  maxim  now  is,  The  trust  or  power  imperative  is  the 
estate.  But  in  the  time  of  Lord  Coke  had  a  bare  power  been  devised  to 
A.  and  B.  to  sell  an  estate,  as  for  payment  of  debts,  the  authority  was 
one  which  A.  and  B.  during  their  joint  lives  were  compellable  by  suh- 
poena  in  chancery  to  execute  for  the  benefit  of  the  creditors;  but  if 
j^_  -.  *A.  happened  to  die  before  the  sale  had  been  carried  into  effect, 
L  -I  the  trust  was  extinguished,  and  the  heir,  who  had  always  re- 
tained a  right  to  the  intermediate  rents  and  profits,  was  then  seised  of 
the  absolute  and  indefeasible  inheritance.  But  in  case  the  testator  had 
devised  the  estate  to  A.  and  B.  to  sell  for  payment  of  debts,  then,  as  the 
trust  was  not  a  mere  power,  but  a  power  coupled  with  an  interest,  it  re- 
ceived a  more  liberal  construction,  and  as  upon  the  death  of  A.  the  whole 
estate  passed  by  survivorship  to  B.,  the  power,  being  annexed  to  the 
estate  was  considered  as  intended  to  survive  with  it.(l) 

(r)  Lane  v.  Debenham,  17  Jur.  1005  ;  and  see  Gouldsb.  2,  pi.  4  ;  Peyton  v. Bury, 
2  P.  W.  628  ;  Mansell  v.  Vaughan,  Wilm.  49 ;  Eyre  v.  Countess  of  Shaftesbury,  2 
P.W.  108,121,  124;  Butler  v.  Bray,  Dyer,  189  b;  Byam  v.  Byam,  19  Beav.  58  ;  Jenk. 
44;  Co.  Lit.  112  b,  113  a;  Flanders  v.  Clarke,  1  Ves.  9;  Potter  v.  Chapman, 
Amb.  100. 

(s)  Co.  Lit.  113  a;  and  see  ib.  181  b. 

(1)  In  examining  the  cases  of  powers  before  the  Statute  of  Uses,  the  following 
points  may  be  usefully  noticed.  1.  A  person  seised  of  the  legal  estate  of  lands 
could  not,  before  the  Statute  of  Wills,  have  devised  them  directly,  and  therefore 
he  could  not  have  gained  his  object  indirectly  by  means  of  a  power:  had  a  tes- 
tator devised  that  A.  and  B.  should  sell  his  estate,  the  authority  was  void.  2.  But 
a  use  was  devisable,  and  therefore,  if  cestui  que  use  had  devised  the  lands  to  a 
stranger,  though  the  legal  estate  did  not  pass  (the  statute  of  Richard  the  Third, 
which  made  mention  of  feoffments  and  grants,  not  extending  to  wills,)  the  devisee 
might  still  have  sued  his  subpcena  in  chancery,  and  have  compelled  the  feoffees  to 
execute  a  conveyance  of  the  estate.  3.  If  cestui  que  use  had  devised  that  A.  and 
B.  should  sell,  and  A.  and  B.  in  pursuance  of  the  authority  had  made  a  feoffment 
or  grant,  this  assurance  seems  to  have  operated  retrospectively  as  the  assurance  of 
the  testator,  and  so,  falling  within  the  words  of  the  statute  of  Richard,  served  to 
pass  even  the  legal  estate.  4.  And  cestui  que  use  might  have  devised  such  an  authority 
even  to  his  feoffees,  and  the  power  would  have  been  construed  in  the  same  manner 
as  if  it  had  been  devised  to  a  stranger  :  thus  where  a  man  enfeofi'ed  A.  and  B.  to 
his  own  use,  and  afterwards  devised  that  the  said  A.  and  B.  should  sell  the  estate 
and  apply  the  proceeds,  &c.,  and  A.  and  B.  on  the  decease  of  the  testator,  enfeoff- 
ed C.  and  D.  to  the  like  uses,  it  was  ruled  that  A.  and  B.  might  still  sell  under 


THE    POWERS    OF    TRUSTEES.  449 

A  distinction  may  perhaps  be  thought  to  exist  between  cases  where 
the  language  of  the  power  is  indefinite,  as  to  the  *persons  by  r^cKoo-i 
whom  it  is  to  be  exercised;  for  example,  where  an  estate  is  L  -l 
vested  in  trustees  and  their  heirs  in  trust,  to  sell,  &c.,  and  those  eases 
where  the  power  is  limited  to  persons  by  name,  as  upon  trust,  that  "  the 
said  A.  and  B."  or  that  "the  said  trustees,"  (which  is  equivalent  to 
naming  them,)  shall  sell ;  but  the  courts  have  never  relied  upon  any  dis- 
tinction of  the  kind,  and  it  seems  to  be  now  decided  that  even  where  the 
trust  is  reposed  in  the  trustees  by  name,  the  survivor,  who  takes  the 
estate  with  a  duty  annexed  to  it,  can  execute  the  trust. (<) 

But  powers  that  are  purely  arbitrary,  and  independent  of  the  trust, 
and  not  intended  in  furtherance  of  the  trust,  must,  it  is  conceived,  be 
construed  strictly,  and  be  governed  by  the  rules  applicable  to  ordinary 
powers.  If,  for  instance,  the  trustees  by  name  have  a  power  of  revoking 
the  limitations,  and  shifting  the  property  into  a  diflferent  channel,  this 
discretion  is  evidently  meant  to  be  personal,  and  not  to  be  annexed  to 
the  estate. 

IV.  Of  the  control  of  the  court  over  the  exercise  of  powers. 

Where  a  power  is  given  to  trustees  to  do,  or  not  do,  a  particular  thing 
at  their  discretion,  the  court  has  no  jurisdiction  to  control  the  trustees 
in  the  exercise  of  that  discretion,  provided  their  conduct  be  bona  fide, 
and  their  determination  is  not  influenced  by  improper  motives.(M) 

Thus,  in  Pink  v.  De  Thuisey,(r)  a  testatrix  gave  1000?.  to  A.  upon  a 
condition  precedent,  but  ''  left  her  executor  at  Uherty  to  give  the  said 
sum  if  he  found  the  thing  proper"  though  the  condition  should  not  have 
been  performed.  A.  died  without  having  fulfilled  the  condition  or 
received  the  money,  and  his  *personal  representative  filed  a  bill  r^^Qo-i 
against  the  executor  of  the  testatrix  to  compel  payment  of  the  L  J 
legacy.     A.  in  his  lifetime  had  applied  for  the  money,  but  the  executor 

{t)  Lane  v.  Debenham,  V.  C.  Wood,  It  Jur.  1005. 

(m)  Thomas  v.  Bering,  1  Keen,  729  ;  Pink?  v.  De  Thuisey,  2  Mad.  157 ;  French 
V.  Davidson,  3  Mad.  396 ;  Sillibourne  v.  Newport,  1  Kay  &  Johns.  602  ;  Walker  v. 
Walker.  5  Mad.  424;  Bankes  v.  Le  Despencer,  11  Sim.  527,  per  Sir  L.  Shadwell; 
Attorney-General  v.  Governors  of  Harrow  School,  2  Ves.  551  ;  Cowley  v.  Harts- 
tonge,  1  Dow.  378,  per  Lord  Eldon  ;  Potter  v.  Chapman,  Amb.  99,  per  Lord  Hard- 
wicke  ;  Carr  v.  Bedford,  2  Ch.  Re.  146  ;  Wain  v.  Earl  of  Egmont,  3  M.  &  K.  445  ; 
Livesey  v.  Harding,  Taml.  4G0 ;  Collins  v.  Viuing,  C.  P.  Coop.  Rep.  1837-38,  472; 
Kekewich  v.  Marker,  3  Mac.  &  Gor.  326,  per  Lord  Truro;  Lee  v.  Young,  2  Y.  & 
C.  Ch.  Ca.  532. 

{v)  2  Mad.  157. 

the  power,  although  they  had  parted  with  the  legal  fee.  5.  Until  the  sale  was 
effected,  the  feoffees  were  trustees  for  the  testator's  heir,  and  were  bound  to  account 
to  him  for  the  accruing  rents  and  profits  ;  and  if  the  power,  which,  whether  givea 
to  a  stranger  or  to  the  feoffees,  was  construed  as  a  naked  authority,  became  ex- 
tinguished by  any  means,  as  by  the  death  of  the  donees  of  the  power,  the  heir  was 
as  absolutely  entitled  to  the  use  in  fee,  as  if  no  will  had  been  made.  6.  So 
long  as  the  power  subsisted,  the  person  who  Avould  suffer  by  the  extinguishment 
of  the  power  might  have  compelled  the  donees,  by  filing  a  bill  in  chancery,  to  exe- 
cute the  power.  7.  But  if  the  proceeds  of  the  sale  were  to  be  distributed  in  pios 
usus,  as  no  one  could  plead  a  personal  loss  by  the  non-execution  of  the  power, 
there  was  no  one  to  sue  a  subpa-na,  and  the  donees  of  the  power  were  left  to  the 
arbitrary  exercise  of  their  own  discretion.  See  case  temp.  H.  7,  Treat,  of  Powers, 
Appendix,  No.  1. 


450       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

had  not  thought  it  right  to  comply  with  the  request.  Sir  T.  Plumer,  in 
dismissing  the  bill,  observed,  "  The  executor  says  he  did  not  think  proper 
to  advance  the  legacy :  is  the  court  to  decide  upon  the  propriety  of  the 
executor's  withholding  the  legacy  ?  That  would  be  assuming  an  authority 
confided  by  the  will  to  the  discretion  of  the  executor :  it  would  be  to 
make  a  will  for  the  testatrix,  instead  of  expounding  it." 

Again,  where  a  testator  directed  that  so  long  as  the  produce  of  certain 
estates  should  be  consigned  to  the  house  of  '<  D.  and  Son,"  in  which  the 
testator  held  a  moiety  of  the  emoluments,  his  executors,  "  unless  circum- 
stances should  render  it  unnecessary,  inexpedient,  and  impracticable," 
should  pay  out  of  the  income  of  his  residuary  property,  an  annuity  of 
600?.  to  Messrs.  French,  and  the  executors  declined  to  pay  the  annuity. 
Sir  J.  Leach  said,  "  The  executors  are  to  exercise  the  authority,  unless 
circumstances  shall  render  it  unnecessary,  inexpedient,  and  impracticable, 
by  which  must  be  meant  shall  in  their  opinion  render  it  unnecessary, 
inexpedient,  and  impracticable.  If  they  had  distinctly  stated  in  their 
answer  that  they  had  not  made  the  payment  because,  using  their  best 
discretion  upon  the  subject,  they  had  come  to  a  conclusion  that  circum- 
stances had  rendered  the  payment  unnecessary,  inexpedient,  and  imprac- 
ticable, a  court  of  equity  could  not  have  controlled  their  judgment,  unless 
it  appeared  that  they  had  acted  mala  fide.  But  their  answer  states  many 
mixed  motives  for  their  refusal  to  pay  the  annuity,  and  it  is  plain  that 
they  have  never  simply  addressed  themselves  to  the  sound  exercise  of  that 
discretion  which  the  testator  has  been  pleased  to  place  in  them ;"  and 
the  court  declared  in  the  words  of  the  will,  that  the  annuity  was  to  be 
paid  so  long  as  the  consignments  were  continued,  unless  in  the  judgment 
of  the  executors,  circumstances  should  render  it  unnecessary,  inexpedient, 
and  impracticable,  (u') 

.  In  another  case  a  testator  devised  an  estate  to  three  trustees 

L  '^  -J  *upon  trust,  for  A.  for  life,  and  in  case  the  conduct  and  behaviour 
of  A.  should,  for  not  less  a  time  than  the  space  of  seven  years,  at  the 
least,  from  the  testator's  decease, *bc  and  continue  to  the  entire  satisfac- 
tion and  approbation  of  the  trustees,  agreeing  and  signifying  their  unani- 
mous approbation  of  such  conduct,  then  the  said  testator  gave  the  said 
estate  to  A.  in  fee ;  and  at  the  expiration  of  seven  years  from  the  testa- 
tor's decease,  A.  filed  a  bill  against  the  trustees  praying  that  they  might 
signify  their  approbation  of  his  conduct,  and  convey  the  estate  to  him  in 
fee,  and  one  of  the  trustees  stated  by  his  answer,  that  he  had  not  such 
confidence  in  the  conduct  and  discretion  of  the  plaintiif  as  to  induce  him 
to  think  that  it  would  be  proper  or  conformable  with  the  intention  of  the 
testator,  to  give  the  plaintiif  absolute  control  over  the  estate.  Sir  John 
Leach  held,  that  where  the  discretion  of  trustees  was  to  be  exercised  upon 
matter  of  opinion  and  judgment,  as  to  which  well-intentioned  persons 
might  difi"er,  the  court  could  not  substitute  the  master  for  the  trustees  ; 
and  the  court  directed  an  inquiry,  whether  the  conduct  of  the  plaintiflF 
had  for  seven  years  from  the  testator's  death  been  to  the  entire  satisfac- 
tion and  approbation  of  the  trustees;  and  whether  they  had  agreed  and 
signified  their  unanimous  approbation. (x) 

{w)  French  v.  Davidson,  3  Mad.  396.         (a:)  Walker  v.  Walker,  5  Mad.  424. 


THE    POWERS    OF    TRUSTEES.  451 

So,  where  the  trustees  of  a  settlement  had  a  power  of  sale  at  the  request 
and  by  the  direction  of  the  tenant  for  life,  and  A.,  the  tenant  for  life, 
entered  into  a  contract  for  the  sale  of  the  estate  to  B.,  and  the  trustees 
refused  to  concur  in  the  sale,  and  the  purchaser  filed  a  bill  for  specific 
performance  against  the  tenant  for  life  and  the  trustees,  the  court 
observed,  <'  The  contract  having  been  entered  into,  A.  was  himself  boutui 
to  perform  it  if  he  could,  but  he  could  not  perform  it  without  the  con- 
currence of  the  trustees,  and  the  trustees  did  not  concur."(y)  «  With 
respect  to  the  point  which  has  been  raised  whether  A.  can  now  be  called 
upon  to  request  or  direct  the  trustees  to  convey,  I  think  that  he  ought  not 
to  be  called  upon  to  do  so,  unless  it  shall  appear  that  the  trustees  when 
^requested  or  directed  ought  to  comply  with  the  request ;  and  r^.-ii-i 
without  at  present  determining  this  point,  the  strong  inclination  L  J 

of  my  opinion  is,  that  the  power  of  sale  does  give  a  discretion  to  the 
trustees,  in  relation  to  all  the  matters  comprised  in  the  terms  of  the 
power,  and  that  this  court  has  no  power  or  jurisdiction  to  interfere  with 
the  discretion  so  vested  in  the  trustees."(2)  And  on  a  subsequent  day 
the  master  of  the  rolls  observed,  "  I  have  before  stated  that  I  considered 
the  contract  binding  upon  A.  but  not  upon  the  trustees,  and  it  appears 
to  me,  upon  the  true  construction  of  the  settlement  under  which  tlie 
trustees  hold  the  estate,  that  they  have  a  discretion  which  would  entitle 
them  to  refuse  to  concur  in  a  sale  requested  by  A.,  and  that  in  the 
absence  of  any  imputation  upon  them,  this  court  ought  not  to  interfere 
with  that  discretion. "(a) 

Again,  where  estates  were  vested  in  trustees  upon  trust  to  sell,  and 
pay  the  debts  of  the  settlor,  and  the  trustees  were  authorized  to  treat 
with  the  creditors  for  the  amount  of  their  debts,  and  to  deliver  to  them 
debentures,  and  it  was  declared  that  no  creditor  should  be  entitled  to  any 
benefit  under  the  deed  until  such  debenture  was  given ;  on  a  question 
whether  the  court  could  take  upon  itself  to  ascertain  the  debts,  the 
master  of  the  rolls  observed,  ''  If  the  trustees  were  authorised  by  this 
deed  to  refuse  debentures  at  their  discretion  to  any  lawful  creditors,  it  is 
plain  that  this  court  could  never  take  upon  itself  the  exercise  of  such  a 
discretion,  nor  grant  power  to  the  master  to  ascertain  the  parties  entitled 
to  the  benefit  of  this  deed.  The  creditors  must  first  submit  their  claims 
to  the  investigation  and  allowance  of  the  trustees,  and  if  the  trustees 
refuse  to  enter  into  that  investigation,  the  creditors  will  then  be  justified 
in  an  application  to  the  court."(6) 

In  another  case,  a  power  was  given  to  trustees  with  the  consent  of  the 
tenant  for  life  to  invest  the  trust  moneys  in  purchase  of  freehold  or  copy- 
hold estates,  or  leasehold  for  a  term  of  not  less  than  60  years  :  the  tenant 
for  life  was  desirous  of  having  the  fund  invested  in  a  certain  leasehold 
property,  but  one  of  the   trustees,  for  reasons  which  he  stated,  refused, 


l-oi-2] 


and  the  *court  held,  without  examining  into  the  weight  of  the 
reasons  assigned,  that  as  the  trustee  had  not  acted  from  corrupt 
motives,  he  was  not  to  be  controlled,  (o) 

(y)  Thomas  v.  Bering,  1  Keen,  741,  (z)  lb.  743.  (a)  lb.  744. 

(6)  Wain  v.  Egmont,  3  Myl.  &  Keen,  445;  and  see  Drever  v.  Mawdsley,  IGSim. 
511.  (c)  Lee  v.  Voung,  2  Y.  &  C.  Ch.  Ca.  532. 


452       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

But  where  the  trustees  were  "authorized  and  required''  with  the 
consent  and  direction  of  the  tenant  for  life,  to  invest  in  leaseholds,  the 
clause  was  held  to  be  imperative  upon  the  tenant  for  life's  demand,  and 
the  trustees  were  not  allowed  to  say  that  the  leaseholds  would  impose 
personal  liabilities  upon  themselves,  for  by  being  parties  to  the  settlement 
they  had  engaged  to  do  it.(rf) 

So,  where  a  thing  is  to  be  done,  but  the  mode  of  doing  it  is  left  to  the 
discretion  of  trustees,  and  they  are  willing  to  act,  and  there  is  no  mala 
fides,  the  court  will  not  control  their  discretion. 

Thus,  if  a  fund  be  applicable  to  the  maintenance  of  children  at  the 
discretion  of  trustees,  the  court  will  not  take  upon  itself  to  regulate  the 
maintenance,  but  will  leave  it  in  the  hands  of  the  trustees. (e) 

Again,  where  a  fund  is  bequeathed  to  executors  or  trustees  upon  trust 
to  distribute  among  the  testator's  relations,  or  apply  the  fund  to  any  other 
specific  purpose  in  such  'manner  as  the  executors  or  trustees  may  think 
fit,  the  executors  or  trustees,  if  willing  to  execute  the  trust,  will  not,  on 
a  bill  being  filed  for  carrying  the  trusts  into  execution,  be  deprived  of 
their  discretionary  power,  but  may  propose  a  scheme  before  the  master 
for  the  approbation  of  the  court. (/) 

So  where  the  objects  of  the  charity  are  from  time  to  time  to  be  at  the 
discretion  of  the  trustees,  as  if  annual  sums  be  made  distributable  either 
to  private  individuals  or  public  institutions,  as  the  trustees  may  think  fit, 
the  court  will  not  even  order  a  scheme  to  be  proposed,  but  will  leave  the 
trustees  to  the  free  exercise  of  their  power  with  liberty  for  all  parties  to 

apply- (^) 

r-^p. .  q-j  *So  where  trustees  had  a  power  of  selecting  a  lad  for  education 
L  -I  from  certain  parishes,  and  if  there  were  no  suitable  candidate, 
then  from  any  other  parish,  and  the  trustees  upon  consideration  rejected 
the  candidate  from  the  specified  parish,  and  selected  a  lad  from  another 
parish ;  it  was  held  that  the  court  could  not  control  the  discretion.  The 
trustees  had  assigned  no  reasons  for  their  choice,  but  that  the  court  said 
was  not  necessary,  and  in  many  cases  would  not  be  proper. (A) 

But  though  the  trustees  invested  with  a  discretionary  power  are  not 
bound  to  assign  their  reasons  for  the  way  in  which  they  exercise  it;  yet, 
if  they  do  state  their  reasons,  and  it  thereby  appears  that  the  trustees 
were  labouring  under  an  error,  the  court  will  set  aside  the  conclusion  to 
which  they  come  upon  false  premises. (A 

Of  course  there  is  sufiicient  ground  for  the  interference  of  the  court, 
wherever  the  exercise  of  the  discretion  by  the  trustees  is  infected  with 

[d)  Beauclerk  v.  Ashburnham,  8  Beav.  322 ;  Cadogan  v.  Earl  of  Essex,  2 
Drewry,  227. 

(e)  Livesey  v.  Harding,  Taml.460;  Collins  v.  Vining,  C.  P.  Coop.  Rep.  183T-38, 
472. 

(/)  Brunsden  v.  Woolredge,  Amb.  507;  Bennett  v.  Honeywood,  id.  708;  Mahon 
T.  Savage,  1  Sch.  &  Lef.  Ill  ;  Supple  v.  Lowson,  Amb.  729';  &c. 

io)  Waldo  V.  Caley,  16  Ves.  206;  Horde  v.  Earl  of  Suffolk,  2  M.  &  K.  59;  and 
see  Powerscourt  v.  Powerscourt,  1  Moll.  616. 

{h)  Re  Beloved  Wilkes's  Charity,  3  Mae.  &  Gor.  440. 

(i)  Re  Beloved  Wilkes's  Charity,  3  Mac.  &  Gor.  448 ;  King  v.  Archbishop  of 
Canterbury,  15  East,  117. 


THE    POWERS    OF    TRUSTEES.  453 

fraud, (7c)  or  misbebaviour,(/)  or  they  decline  to  undertake  the  duty  of 
exercising  the  discretion  ;(ot)  or  generall}'  where  the  discretion  is  mis- 
cliievously  and  ruinously  exercised,  as  if  a  trustee  be  authorized  to  lay 
out  money  upon  government,  or  real,  or  personal  security,  and  the  trust- 
fund  is  outstanding  upon  any  hazardous  security.(?i)  And  where  the 
trustees  of  a  cliarlty  were  empowered  to  lease  for  three  lives  or  thirty- 
one  years,  the  court  expressed  an  opinion  that  the  discretion  might  be 
controlled,  if  it  appeared  for  the  benefit  of  the  charity  that  such  a  power 
should  not  be  acted  upon.(o) 

Where  proceedings  had  been  taken  for  controlling  the  *discre-  r^icc  ij^-i 
tion  of  the  trustees,  Lord  Hardwicke  said,  "  though  he  could  not  L  J 
contradict  the  intent  of  the  donor,  which  was  to  leave  it  in  the  discre- 
tion of  the  trustees,  yet  he  would  not  dismiss  the  information,  but  would 
still  hcep  a  hand  over  thcni.^Hp\ 

And  generally  where  a  suit  has  been  instituted  for  the  administration 
of  the  trust,  and  a  decree  has  been  made,  that  attracts  the  court's  juris- 
diction, and  the  trustee  cannot  afterwards  exercise  the  power  without  the 
concurrent  sanction  of  the  court ;  as  if  a  trustee  have  a  power  of  ap- 
pointment of  new  trustees,  he  is  not  excluded  from  the  right  of  nomi- 
nating the  person,  but  the  court  must  give  its  sanction  to  the  choice,  (g') 
But  if  a  decree  has  not  been  made,  then,  as  the  plaintiff  may  dismiss 
his  bill  at  any  moment,  the  trustee  must  not  assume  that  a  decree  will 
be  made,  but  must  proceed  with  the  due  execution  of  the  trust.(r)  He 
cannot  be  advised,  however,  to  act  without  first  consulting  the  court.  It 
was  held  in  one  case,  that  the  trustees  had  not  exceeded  their  duty  by 
appointing  new  trustees  after  the  filing  of  the  bill,  as  no  extra  costs  had 
been  thereby  occasioned  ;(.s)  but  in  another  case  it  was  said  that  the 
trustees  ought,  under  the  difficulties  in  which  they  were  placed,  to  have 
consulted  the  court,  and  as  instead  of  so  doing,  they  had  acted  indepen- 
dently and  made  an  appointment  which,  though  they  entered  into  evi- 
dence, they  could  not  justify,  and  great  extra  costs  had  arisen  out  of 
their  conduct,  the  trustees  were  made  to  pay  personally  the  extra  costs 
which  had  been  occasioned. (A 

{k)  lb.  552,  per  Lord  Hardwicke;  Potter  v.  Chapman,  Amb.  99,  per  eundem; 
Richardson  v.  Chapman,  Y  B.  P.  C.  318  ;  French  v.  Davidson,  3  Mad.  402,  per  Sir 
J.  Leach. 

[1)  Maddison  v.  Andrew,  1  Ves.  59,  per  Lord  Hardwicke ;  Attorney-General  v. 
Glegg,  Amb.  585,  joer  eundem;  Willis  v.  Childe,  13  Bear.  117  ;  and  see  Re  Wilkes's 
Charity  3  Mac.  &  Gord.  440 ;  and  see  Byam  v.  Byani,  19  Beav.  G5. 

(m)  Gude  v.  Worthington,  3  De  Gex  &  Sm.  389.  This  was  apparently  the 
ground  on  which  the  case  was  decided,  but  the  refusal  of  the  trustees  to  act  does 
not  sufficiently  appear  on  the  report.     And  see  Mortimer  v.  Watts,  14  Beav.  022. 

[n)  De  Manneville  v.  Crompton,  1  V.  &  B.  359;  and  see  Lee  v.  Young,  2  Y.  & 
C.  Ch.  Ca.  532. 

(o)  Ex  parte  Berkhampstead  Free  School,  2  V.  &  B.  138. 

[p)  Attorney-General  v.  Governors  of  Harrow  School,  2  Yes.  551. 

{q)  Webb  v.  Earl  of  Shaftesbury,  7  Ves.  480 ;  v.  Robarts,  1  J.  &  W.  251 ; 

Middleton  v.  Reay,  7  Hare,  106  ;  Kennedy  v.  Turnley,  6  Ir.  Eq.  Rep.  399. 

(r)  See  Williams  on  Executors,  891,  4th  Edn. 

(s)  Cafe  v.  Bent,  3  Hare,  245.  (t)  Attorney-General  v.  Clack,  1  Beav.  467. 


454       LEWIN  ON  THE  LAW  OF  TKUSTS,  ETC. 

[*545]  *CH AFTER  XX. 

OF    ALLOWANCES   TO    TRUSTEES. 

Now  that  we  have  discussed  the  duties  of  trustees,  and  the  extent  of 
their  jjowers,  we  may  next  enter  upon  a  subject  very  closely  interwoven 
with  the  execution  of  the  office,  viz :  First,  The  allowances  to  trustees 
for  their  time  and  trouble ;  and  Secondly,  The  allowances  to  trustees  for 
actual  expenses. 

SECTION  I. 

ALLOWANCES   FOR   TIME   AND   TROUBLE. 

It  is  an  established  rule  in  general,  that  a  trustee  shall  have  no  allow- 
ance for  his  trouble  and  loss  of  time ;  one  reason  given  is,  that  on  these 
pretences,  if  admitted,  the  trust  estate  might  be  loaded,  and  rendered  of 
little  value,  besides  the  great  difficulty  there  would  be  in  settling  and 
adjusting  the  quantum  of  such  allowance,  especially  as  one  man's  time 
may  be  more  valuable  than  that  of  another.  And  there  can  be  no  hard- 
ship in  this  respect  upon  the  trustee,  for  it  lies  in  his  own  option  whether 
he  will  accept  the  trust  or  not. (a)  But  the  true  ground  is,  that  if  the 
trustee  were  allowed  to  perform  the  duties  of  the  office,  and  to  claim 
compensation  for  his  services,  his  interest  would  be  opposed  to  his  duty ; 
r*54n  ^°*^'^^  ^  matter  of  prudence,  the  *court  will  not  allow  a  trustee 
L         -J  or  executor  to  place  himself  in  such  a  situation. (&) 

And  the  rule  applies  not  only  to  trustees  in  the  strict  and  proper  sense 
of  the  word,  but  to  all  who  are  virtually  invested  with  a  fiduciary 
character,  as  executors  and  administrators,(r)  mortgagees, (f?)  receivers,(e) 
committees  of  lunatics'  estates,(/)  &c. 

But  trustees  for  absentees  of  estates  in  the  West  Indies  are  allowed  a 
commission  for  their  personal  care  in  the  management  and  improvement 
of  the  property.  However,  if,  instead  of  remaining  upon  the  island, 
they  commit  the  management  to  the  hands  of  agents,  the  court  will  re- 
ject the  claim;  for  it  would  be  a  strange  construction  that  one  allowed 
a  commission  on  account  of  the  proprietor's  absence  should  insist  upon 

(a)  Robinson  v.  Pett,"  3  P.  W.  251,  per  Lord  Talbot;  Gould  v.  Fleetwood,  cited 
ib.  note  (A) ;  How  v.  Godfrey,  Rep.  t.  Finch,  361  ;  Brocksopp  v.  Barnes,  5  Mad. 
90 ;  Ayliffe  v.  Murray,  2  Atk.  58  ;  In  re  Ormsby,  1  B.  &  B.  189,  per  Lord  Manners ; 
Charity  Corp.  v.  Sutton,  2  Atk.  406,  per  Lord  Hardwicke ;  Bonithon  v.  Hockmore, 
1  Vern.  316,  &c. 

(6)  New  V.  Jones,  Exch.  Aug.  9,  1833,  cited  9th  Jarm.  Prec.  338,  per  Lord 
Lyudhurst ;  and  see  Burton  v.  Wookey,  6  Mad.  368. 

(c)  Scattergood  v.  Harrison,  Mos.  128;  How  v.  Godfrey,  Rep.  t.  Finch,  361  ; 
Sheriff  V.  Axe,  4  Russ.  33. 

(d)  Bonithon  v.  Hockmore,  1  Vern.  316;  Langstaffe  v.  Fenwick,  10  Ves.  405; 
French  v.  Baron,  2  Atk.  120  ;  Carew  v.  Johnston,  2  Sch.  &  Lef.  301 ;  Arnold  v. 
Garner,  2  Phil.  231 ;  Mathison  v.  Clarke,  3  Drewry,  3. 

(c)  In  re  Ormsby,  1  B.  &  B.  189. 

(/)  Anon,  case^  10  Ves.  103;  Re  Walker,  2  Phill.  630;  Re  Westbrooke,  ib.  631. 


OF    ALLOWANCES    TO    TRUSTEES.  455 

his  reward  wlien  he  had  been  absent  himself.(^)  But  a  manager,  though 
he  forfeits  his  commission  during  the  period  of  his  absence,  will  be  repaid 
the  sums  actually  disbursed  by  him  for  the  care  of  the  estate  by  others, 
provided  the  payments  he  has  made  be  in  themselves  reasonable  and 
proper.  (7i) 

The  rate  of  commission  in  Jamaica  has  been  regulated  by  several  acts 
of  assembly  :  it  was  originally  10/.  per  cent,  upon  the  receipts,  then  8/. 
per  cent.,  and  since  Ql.  per  cent.(Q  But  the  intention  of  the  legislature 
was  only  that  the  rate  should  not  exceed  6/.  per  cent.,  not  that  under 
particular  circumstances  it  might  not  be  a  great  deal  less.(/i;) 

Mortgagees  in  possession  of  estates  situate  in  Jamaica  are  by  the  act 
referred  to  expressly  prohibited  from  charging  any  commission,  except 
what  they  may  have  themselves  paid  by  way  of  commission  to  a  factor,(/) 
and  even  irrespectively  of  ^statutory  prohibition,  mortgagees  in  r^^^y-i 
possession  of  West  Indian  property  are  under  the  same  disability  L 
of  charging  commission  as  if  the  property  were  situate  in  this  country. (m) 

An  executor  who  has  been  appointed  in  the  East  Indies  and  adminis- 
ters in  that  country,  and  then  returns  to  England,  will,  if  called  upon  in 
a  court  of  equity  to  render  an  account,  be  allowed  a  commission  of  five 
per  cent,  upon  the  receipts  or  payments  according  to  the  practice  of  the 
Indian  courts.  The  appointment  of  an  executor  in  the  East  Indies  is 
considered  the  appointment  of  an  agent  for  the  management  of  the  estate. 
Without  such  an  allowance,  where  a  person  died  in  India  deprived  of  the 
presence  of  his  relations^  the  effects  of  the  testator  might  often  not  be 
collected  at  all.  Besides,  the  executors  in  England  could  scarcely  pro- 
cure a  person  to  undertake  the  office  at  any  cheaper  rate.(/i)  If  an  In- 
dian executor  after  collecting  part  of  the  assets  comes  over  to  this  country 
he  will  be  allowed  a  commission  on  those  assets  only  that  were  collected 
by  himself  in  India,  and  not  on  the  assets  subsequently  collected  by  his 
agents  and  transmitted  to  this  country,  for  the  courts  here  allow  the  com- 
mission because  the  Indian  courts  allow  it,  and  the  Indian  courts  allow 
it  on  the  ground  of  residence  in  India. (o) 

An  executor  in  India  will  only  be  allowed  the  commission  where  the 
testator  himself  has  not  left  him  a  legacy  for  his  trouble  j(p)  but  if  the 

{g)  Chambers  v.  Goldwin,  5  Ves.  834;  9  Ves.  254,  see  273. 

(h)  Forrest  v.  Ehves,  2  Mer.  08. 

\i)  Chambers  v.  Goldwin,  9  Ves.  267.  (A")  See  S.  C.  id.  257. 

\l)  See  S.  C.  5  Ves.  837  ;  9  Ves.  268.  {m)  Leith  v.  Irvine,  1  M.  &  K.  277. 

{n)  Chetham  v.  Lord  Audley,  4  Ves.  72  ;  Matthews  v.  Bagshaw,  14  Beav.  123. 
To  the  latter  case  is  appended  the  following  note: — 

"  The  custom  of  allowing  a  commission  to  executors  and  administrators  in  the 
presidency  of  Bengal  has  been  abolished  by  Act  No.  VIL,  of  1849,  of  the  governor- 
general  in  council.  By  that  act  an  administrator-general  has  been  appomted  in 
place  of  the  ecclesiastical  registrar,  with  a  reduced  commission  of  3  per  cent,  on 
moneys  distributed  or  invested  in  manner  therein  provided. 

"By  Act  No.  XL  of  1850,  the  provisions  of  the  above  act,  with  certain  restric- 
tions, are  extended  to  the  presidencies  of  Madras  and  Bombay,  but  the  rate  of 
commission  to  the  public  administrator  is  there  to  remain  5  per  cent,  until  altered 
to  3  per  cent,  by  the  governor  and  council  in  each  of  these  presidencies.'' 

(o)  Campbell  v.  Campbell,  13  Sim.  168  :  and  see  2  Y.  &  C.  Ch.  Ca.  607. 

\p)  Freeman  v.  FairUe,  3  Mer.  24. 


456  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

amount  of  the  legacy  be  an  inadequate  compensation  for  the  duties  of  the 
office,  it  seems  the  executor,  so  as  he  signify  his  resolution  in  proper  time, 
may  renounce  *the  intended  legacy,  and  take  advantage  of  the 
L         J  commission. (§') 

A  person  who  has  carried  on  a  business  with  another  man's  money, 
and  so  is  constructively  a  trustee,  will,  if  compelled  to  account  for  the 
profits,  be  sometimes  allowed  a  compensation  for  his  skill  and  exertions 
in  the  management  of  the  concern. 

Thus,  Brown  and  De  Tastet  were  partners,  and  Brown  died,  and  De 
Tastet  carried  on  the  business  with  Brown's  money.  A  bill  was  filed  by 
Brown's  representative  against  De  Tastet  for  an  account,  and  Lord  Eldon 
said,  "•  It  could  not  be  denied,  that  if  the  business  was  such  that  on  the 
death  of  the  party  other  persons  were  concerned  in  aiding  it  by  the 
application  of  their  skill,  their  services,  and  their  property,  a  great  deal 
would  be  included  under  the  head  of  just  allowances,  which,  till  the 
master  had  thoroughly  investigated  the  case,  the  court  could  not  deter- 
mine;" and  it  was  ordered,  that  upon  the  reference  to  the  master,  De 
Tastet  should  be  at  liberty  to  submit  any  claims  to  just  allowances  for 
his  management  of  the  business,  the  master  to  certify  upon  what  grounds 
he  made  the  allowances  should  the  plaintiff  require  it,  or  upon  what 
grounds  he  refused  to  make  the  allowances  if  required  by  the  defend- 
ant, (r) 

To  this  principle  must  be  referred  the  early  case  of  Brown  v.  Litton, 
before  Lord  Harcourt.(.s)  The  captain  of  a  ship,  who  had  800  dollars 
on  board  which  he  intended  to  invest  in  trade,  died  upon  the  voyage,  and 
the  mate,  who  succeeded  to  the  command  of  the  vessel,  took  the  800 
dollars,  and  traded  with  them,  and  made  great  improvements.  The  exe- 
cutrix of  the  captain  filed  a  bill  for  an  account,  and  Lord  Keeper  Har- 
court  said,  ^'  The  defendant  was  like  a  trustee,  and  was  clearly  liable  to 
account  for  the  profits.  It  resembled  the  case  of  two  joint  traders,  where 
one  died,  and  the  survivor  carried  on  the  business,  when  the  survivor 
should  account  for  the  profits  he  made  to  the  representative  of  the  de- 
ceased partner."  And  the  court  observed,  that  ''  this  country  being  an 
P^r  iq-|  island,  all  imaginable  ^encouragement  ought  to  be  given  to  trade ; 
L  J  and  it  was  a  comfort  to  a  man  to  know  that  if  he  should  die  on 
the  passage,  the  improvement  of  his  eifects  should  be  for  the  advantage 
of  his  family  ;  but  that,  to  recompense  the  defendant  for  his  care  in  trad- 
ing with  the  money,  the  master  should  settle  a  proper  salary  for  the  pains 
and  trouble  he  had  been  at  in  the  management  thereof." 

But  a  person  will  not  be  allowed  to  charge  any  thing  for  his  manage- 
ment of  a  trade  or  business,  where  he  has  been  clothed  in  express  terms 
with  a  character  of  a  trustee  or  executor.  (A 

A  solicitor  or  attorney  who  sustains  the  character  of  trustee  will  not 
be  permitted  to  charge  for  his  time,  trouble,  or  attendance,  but  only  for 

{q)  See  Freeman  v.  Fairlie,  3  Mer.  28. 

(r)  Brown  v.  De  Tastet,  Jac.  284;  and  see  Sir  Samuel  Romilly's  argument  in 
Crawsliay  v.  Collins,  15  Ves.  225. 

{s)   1  P.  W.  140;  S.  C.  10  Mod.  20. 

{t)  Stocken  v.  Dawson,  6  Beav.  371  ;  Burden  v.  Burden,  1  V.  &  B.  170 ;  Brock- 
Bopp  V.  Barnes,  5  Mad.  90.     See  Marshall  v.  Holloway,  2  Sw.  432. 


OF    ALLOWANCES    TO    TRUSTEES.  457 

his  actual  disbursements ;(«)  nor  can  the  charge  be  made  by  the  firm  of 
which  the  trustee  is  a  partner.(i')  <<  The  principle,"  observed  Lord 
Lyndhurst,  "  applies  as  strongly  to  the  case  of  an  attorney  as  to  that  of 
any  other  person.  If  an  attorney  who  is  an  executor  performs  business 
that  is  necessary  to  be  transacted,  he  is  not  entitled  to  be  repaid  for  those 
duties;  for  it  would  be  placing  his  interest  at  variance  with  the  duties 
he  has  to  discharge.  It  is  said,  the  bill  may  be  taxed,  and  tliis  would  be 
a  sufficient  check ;  but  I  am  of  opinion  that  that  would  not  be  a  suffi- 
cient check  :  the  estate  has  a  right  not  only  to  the  protection  of  the  tax- 
ing officer,  but  also  to  the  vigilance  and  guardianship  of  the  executor  or 
trustee  in  addition  to  the  check  of  the  taxing  officer.  There  may  be 
cases  where  a  trustee  placed  in  the  situation  of  a  solicitor  might,  if  he 
were  allowed  to  perform  the  duties  of  a  solicitor  and  to  be  paid  for  them, 
find  it  very  often  proper  to  institute  and  carry  on  legal  proceedings,  which 
he  would  not  do  if  he  were  to  derive  no  emolument  from  them  himself, 
and  if  he  were  to  employ  another  person.  If  a  trustee,  *who  is  p^.  r^-. 
a  solicitor,  acts  as  a  solicitor,  he  is  nut  entitled  to  charge  for  his  L  -• 
labour,  but  only  for  his  costs  out  of  pocket. "(w) 

But  a  solicitor  in  the  country  defending  a  suit  in  chancery  as  execu- 
tor through  a  town  agent,  will  be  allowed  such  proportion  of  the  agent's 
bill  in  respect  of  the  defence  as  such  agent  is,  on  his  own  account,  enti- 
tled to  receive. (.f)  And  in  one  case  it  was  held  that  the  rule  so  strin- 
gently enforced  in  the  administration  of  a  trust  out  of  court,  did  not 
apply  to  the  case  of  several  co-trustees,  who,  not  by  any  act  of  their  own, 
but  at  the  will  of  another,  were  made  defendants  to  a  suit,  and  that  in 
such  a  case  if  one  of  the  trustees  was  a  solicitor,  and  acted  for  himself 
and  his  co-trustees,  he  ought  to  be  allowed  the  full  costs,  unless  it  could 
be  shown  that  they  had  been,  to  any  extent,  increased  through  his  own 
conduct.(v/)  But  this  exception  stands  by  itself,  and  is  not  likely  to  be  fol- 
lowed ;  and  accordingly,  where  a  solicitor,  a  single  trustee,  defended  him- 
self by  his  partner,  the  claim  to  professional  profits  was  disallowed.  (2) 

If  a  cestui  que  trust  settle  accounts  with  a  trustee,  a  solicitor,  and  exe- 
cute a  general  release,  and  the  accounts  contain  items  of  charges  for  pro- 
fessional services,  the  eet^tui  que  trust,  if  he  had  no  legal  advice,  and  was 
not  expressly  informed  that  professional  services  miglit  have  been  disal- 
lowed, may  open  the  accounts  as  regards  the  objectionable  items  ;(</)  but 
if  the  cestui  que  trust  had  independent  legal  assistance,  he  is  bound  by 
the  release. (6) 

The  doctrine  against  professional  charges  by  a  trustee,  a  solicitor,  is  so 

(m)  New  V.  Jones,  Excbeq.  Aug.  9,  1833,  9  Jarm.  Free.  338  ;  Moore  v.  Frowd, 
3  M.  &  C.  4G;  Eraser  v.  Palmer,  4  Y.  &  C.  515;  In  re  Sherwood,  3  Beav.  338  ; 
York  V.  Brown,  1  Coll.  2G0;  Bainbrigge  v.  Blair,  8  Beav.  588  ;  Stanes  v.  Parker, 
9  Beav.  385;  Broughton  v.  Broughton,  5  De  Gex,  Mac.  &  Gor.  ltJO;Todd  v. 
Wilson,  9  Beav.  48G ;  Gomley  v.  Wood,  3  Jones  &  Lat.  G78. 

(v)  Collins  V.  Carey,  2  Beav.  128.  (w)  New  v.  Jones,  9  Jarni.  Prec.  338. 

(x)  Burge  v.  Brutton,  2  Hare,  373. 

(y)  Cradock  v.  Piper,  1  Mac.  &  Gord.  664,  S.  C.  1  Hall  &  T.  617. 

(z)  Lyon  v.  Baker,  5  De  Gex  &  Sm.  622 ;  and  see  Lincoln  v.  Windsor,  9  Hare, 
158 ;  Broughton  v.  Broughton,  5  De  Gex,  Mac  &  Gor.  IGO  ;  2  Sm.  &  Gif.  422. 

(a)  Todd  V.  Wilson,  9  Beav.  486. 

{b)  Stanes  v.  Parker,  9  Beav.  385:  Re  Wyche,  11  Beav.  209. 


458  LEWIN    ON   THE    LAW    OF    TRUSTS,    ETC. 

rigidly  applied,  that  where  a  security  has  been  given  for  payment  of  such 
pr'ofessional  charges,  it  may  be  set  aside,  even  as  against  a  purchaser  for 
a  valuable  consideration,  if  he  had  notice. (c) 

The  rule  against  allowances  to  trustees  is  merely  a  general  one  in  the 
absence  of  express  directions  to  the  contrary;  for  there  is  no  objection, 

-p^^-,  if  the  settlor  himself  choose  to  ^compensate  the  trustee  for  his 
[  ^^■'-J  services,  either  by  the  gift  of  a  sum  in  gross,  or  by  the  allowance 
of  a  salary,  (c?) 

Thus,  in  Webb  v.  The  Earl  of  Shaftesbury,(e)  an  estate  was  devised  to 
Arrowsmith  and  his  heirs  upon  trust  to  settle  and  manage,  and  out  of  the 
rents  and  profits  to  pay  all  rates  and  taxes,  charges  of  repairs,  stewards', 
bailiffs',  and  gamekeepers'  salaries,  and  all  other  expenses,  and  the  com- 
mission thereafter  mentioned,  and  subject  thereunto  upon  certain  trusts; 
and  the  testator  directed  that  the  trustee  should  retain  for  his  trouble  a 
commission  of  bl  per  cent,  on  the  gross  rental  of  the  estates.  The  trus- 
tee claimed  to  be  reimbursed  all  his  expenses  over  and  above  his  com- 
mission ;  and  Lord  Eldon  said,  <'  he  felt  a  strong  inclination  to  hold  that 
this  commission  of  5?.  per  cent,  was  the  whole  the  trustee  was  to  have, 
but  the  will  did  not  say  so,  and  upon  the  will  he  must  give  him  the 
other  allowances." 

And  if  a  testator  give  an  executor  a  salary  for  his  trouble,  the  allow- 
ance will  not  cease  on  the  institution  of  a  suit ;  for  though  the  manage- 
ment be  thenceforward  under  the  direction  of  the  court,  the  executor  is 
still  called  upon  to  assist 'the  court  in  the  administration  with  his  care 
and  vigilance. (/) 

Where  the  settlor  has  directed  a  remuneration,  but  has  not  declared 
his  mind  as  to  the  amount,  it  will  be  referred  to  the  master  to  settle  the 
quantum  meruit  according  to  the  circumstances  of  the  case.(<7) 

The  trustee  may  also  contract  {or  a.n  allowance  with  his  cestui  que  trust ; 
but  bargains  of  this  kind  are  very  suspicious,  and  arc  watched  by  the 
court  with  an  eye  of  extreme  jealousy. 

Two  persons  had  been  made  executors  and  trustees,  and  one  of  them 
refused  to  act  unless  the  cestui  que  trust  would  give  them,  besides  their 
legacies,  some  consideration  for  their  trouble.  This  the  cestui  que  trust 
refused  for  some  to  time  to  do,  but  at  last  consented  to  give  100/.  to  one, 
and  200/.  to  the  other.  Lord  Hardwicke  said,  "  With  regard  to  the 
question,  whether  upon  general  grounds  a  trustee  may  make  an  agree- 
^^.^  -.  ment  with  his  cesttii  que  trust  for  an  extraordinary  allowance  *over 
L  "'J  and  above  what  he  is  allowed  by  the  terms  of  the  trust,  I  think 
there  may  be  cases  where  the  court  would  establish  such  agreements ; 
but  at  the  same  time  time  would  be  extremely  cautious  and  wary  in 
doing  it.  In  general  the  court  looks  upon  trusts  as  honorary,  and  a 
burden  upon  the  honour  and  conscience  of  the  person  intrusted,  and  not 
undertaken  upon  mercenary  views ;  and  there  is  a  strong  reason,  too, 

(c)  Gomley  v.  Wood,  3  Jones  &  Lat.  678. 

{d)  Robinson  v.  Pett,  3  P.  W.  250,  per  Sir  J.  Jekyll ;  Willis  v.  Kibble,  1  Beav. 
559. 

(c)  T  Ves.  480.  (/)   Baker  y.  Martin,  8  Sim.  25. 

(g)  Ellison  v.  Airey,  1  Ves.  Ill,  see  115  ;  and  see  Willis  v.  Kibble,  1  Beav.  559. 


OF    ALLOWANCES    TO    TRUSTEES.  459 

against  allowing  any  thing  beyond  the  terms  of  the  trust,  because  it  gives 
an  undue  advantage  to  a  trustee  to  distress  a  cestui  que  trust ;  and  there- 
fore this  court  has  always  held  a  strict  hand  over  trustees  in  this  particu- 
lar. If  a  trustee  comes  in  a  fair  and  open  manner,  and  tells  the  cestui 
que  trust  that  he  will  not  act  in  such  a  troublesome  and  burdensome 
ofl&ce  unless  the  cestui  que  trust  will  give  him  a  further  compensation, 
and  it  is  contracted  for  between  them,  I  will  not  say  this  court  will  set 
it  aside,  though  there  is  no  instance  where  they  have  confirmed  such  a 
bargain.  I  consider  the  present  case  in  this  light : — Two  trustees  are 
making  an  ill  use  of  an  authority  they  had  under  the  will  to  extort  a 
reward  from  the  cestui  que  trust.  If  they  had  told  him,  '  Give  us  a 
further  reward,  or  we  will  renounce,'  they  had  acted  fairly,  and  some- 
thing might  be  said  in  favour  of  the  contract ;  but  the  personal  estate 
was  vested  in  them  before  probate,  and  could  not  be  got  out  of  them 
without  an  actual  renunciation.  The  real  estate  was  likewise  vested  in 
them,  and  could  not  be  taken  out  of  them  but  by  an  actual  assignment ; 
and,  sensible  of  these  difficulties  upon  the  cestui  q^ie  trust,  the  trustees 
and  executors,  in  order  to  force  him  into  their  terms,  would  not  act. 
Consider  the  ill  consequences  of  such  a  case.  Suppose  it  should  be 
necessary  that  a  will  should  be  immediately  proved,  as  in  the  case  of  a 
widow  and  children  ;  shall  a  trustee,  in  whom  the  testator  reposed  a 
trust  and  confidence,  and  depended  upon  his  honour  and  kindness,  insist 
upon  such  hard  terms  as  to  have  an  unreasonable  reward  before  he  will 
either  prove  the  will  or  act  in  the  trust  ?"  '  And  the  trustees  were 
refused  the  advantage  of  their  bargain. (A) 

Where  a  trust  was  created  by  deed,  and  it  was  dojibtful  whether,  as 
the  instrument  directed  the  payment  of  "all  costs,  ^charges,  |.^^_„^ 
and  expenses  which  the  trustees  might  sustain,  expend,  or  be  L  J 
put  unto,  the  same  to  be  reckoned  as  between  attorney  and  client,"  the 
trustees,  who  were  solicitors,  had  not  stipulated  for  the  allowance  of 
their  professional  charges,  besides  their  expenses  out  of  pocket.  Lord 
Cottenham  said,  "  The  parties  may  by  contract  make  a  rule  for  them- 
selves, and  agree  that  a  trustee,  being  a  solicitor,  shall  have  some  benefit 
beyond  that  which,  without  such  contract,  the  law  would  have  allowed ; 
but  in  such  a  case  the  agreement  must  be  distinct,  and  in  its  terms 
explain  to  the  client  the  eifect  of  the  arrangement,  and  the  more  parti- 
cularly when  the  solicitor  for  the  client,  becoming  himself  a  trustee,  has 
no  interest  personal  to  himself  adverse  to  that  of  the  client.  It  is  not 
easy  to  conceive  how,  consistently  with  the  established  rules  respecting 
contracts  between  solicitors  and  their  clients,  a  solicitor  could  maintain 
such  a  contract  made  with  his  client  for  his  own  benefit,  the  client 
having  no  other  professional  adviser,  and  in  the  absence  of  all  evi- 
dence, and  of  any  probability  that  he  was  aware  of  his  rights,  or  of  the 
rule  of  law,  or  of  the  eflfect  of  the  contract."(/)  And  his  lordship  dis- 
allowed the  claim. 

Even  where  the  contract  is  not  void  ah  initio,  the  conditions  of  it 
must  be  fulfilled  to  the  letter,  or  the  trustee  is  not  entitled  to  his  reward. 

(/i)  Ajiiffe  V.  Murray,  2  Atk.  58.  (t)  Moore  v.  Frowd,  3  M.  &  C.  46,  see  48. 


460       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

An  executor,  who  had  no  legacy,  and  where  the  execution  of  the  trust 
was  likely  to  be  attended  with  trouble,  agreed  with  the  residuary  lega- 
tees, in  consideration  of  100  guineas,  to  act  in  the  executorship.  He 
died  before  the  execution  of  the  trust  was  completed,  and  his  executors 
brought  a  bill  to  be  allowed  those  100  guineas  out  of  the  trust  money  in 
their  hands ;  but  the  court  said  all  bargains  of  this  kind  ought  to  be  dis- 
couraged, as  tending  to  eat  up  the  trust,  and  here  the  executor  had 
died  before  he  had  finished  the  affairs  of  the  trust;  and  so  the  plaintiff's 
demand  was  disallowed. (/..•) 

A  trustee  dealing,  not  with  the  cestui  que  trust,  but  with  the  court,  is 
of  course  at  liberty,  before  accepting  the  trust,  to  stipulate  for  a  reason- 
able remuneration.  (/) 

f^rr-A-,  *In  Marshall  v.  Holloway,(»i)  Croft,  one  of  three  trustees,  had 
L  -J  declined  to  prove  the  will  or  enter  upon  the  trusteeship,  but  had 
executed  no  disclaimer  of  the  estate,  and,  as  the  person  best  acquainted 
with  the  testator's  affairs,  had  been  employed  by  his  co-trustees  in  the 
capacity  of  agent.  The  co-trustees  filed  a  bill  for  the  administration  of 
the  trust,  and  prayed,  inter  alia,  that  in  case  the  court  should  be  of 
opinion  that  Croft  ought  to  be  discharged  from  the  trust,  then  he  might 
convey  the  trust  estates,  and  be  allowed  a  compensation  for  his  time  and 
trouble  in  the  management  of  the  testator's  affairs.  Lord  Eldon  decreed, 
that,  "  it  being  alleged  by  the  co-trustees  that  the  nature  and  circum- 
stances of  the  testator's  estate  required  the  application  of  a  great  pro- 
portion of  time,  and  that'  they  could  not  undertake  to  continue  in  the 
trust  without  the  aid  and  assistance  of  Croft,  who  was  better  acquainted 
therewith  than  ai^  other  person,  and  that  it  would  be  for  the  benefit  of 
the  estate  that  Croft  should  continue  a  trustee,  and  it  being  alleged  by 
Croft  that  due  attention  to  the  affairs  of  the  testator  would  require  so 
much  of  his  time  and  attention  as  would  be  greatly  prejudicial  to  his 
other  pursuits,  and  therefore  he  would  not  have  undertaken  to  act  there- 
in, but  under  the  assurance  that  an  application  would  be  made  to  the 
court  to  authorize  the  allowance  of  a  reasonable  compensation  for  his 
labour  and  time,  and  that  he  could  not  continue  to  act  therein  without 
such  reasonable  allowance  being  made  to  him,  it  should  therefore  be 
referred  to  the  master,  to  settle  a  reasonable  allowance  to  be  made  to 
Croft  for  his  time,  pains,  and  trouble  for  the  time  past ;  and  if  the 
master  should  be  of  opinion  that  Croft  should  be  continued  a  trustee, 
then  to  settle  a  reasonable  allowance  to  be  made  to  Croft  for  his  services 
in  the  time  to  come." 

But  if  a  trustee  omit  to  contract  with  the  court  before  entering  upon 
his  duties,  he  will  have  great  difficulty  in  obtaining  compensation  after- 
wards, and  we  may  add  that  in  no  case  will  the  court  remunerate  a  trus- 
tee for  his  trouble  by  permitting  him  to  make  j)rofessional charges  where 
the  settlor  has  not  so  directed,  but  will  compensate  him  for  his  trouble 
if  at  all  by  a  regular  and  fixed  salary,  fn)     Lord  Langdale  commenting 

(k)  Gould  V.  Fleetwood,  cited  Robinson  v.  Pett,  3  P.  W.  251,  note  (A.) 
[l)  Brocksopp  V.  Barnes,  5  Mad.  90,  per  Sir  J.  Leach ;  see  Morison  v.  Morison, 
4  M.  &  C.  215. 

(to)  2  Sw.  432.  (n)  Bainbrigge  v.  Blair,  8  Beav.  588. 


OF    ALLOWANCES    TO    TRUSTEES.  401 

*upon  Marshall  v.  Holloway,  observed,  the  trustee  and  solicitor  ^^^.^ 
in  that  case  was  not  allowed  to  charge  his  bill  of  costs,  or  to  L'^'^'^J 
charge  for  each  particular  item  of  business  done,  but  an  inquiry  was 
directed  whether  it  would  be  proper,  under  the  peculiar  circumstances, 
to  give  him  some  remuneration  or  compensation  for  his  loss  of  time  and 
trouble.  I  may  therefore  safely  say  that  this  court  would  not,  even  in  a 
case  when  it  thought  a  deviation  from  the  general  rule  advisable  and 
proper,  make  that  deviation  by  allowing  a  gentleman  acting  as  solicitor 
for  himself  as  trustee  to  make  the  usual  professional  charfjes  against  the 
trust  fund.  To  do  so  would  be  to  place  a  party  having  a  duty  conflict- 
ing with  his  interest  in  the  position  of  having  to  make  out  his  own  bill 
against  himself,  leaving  any  error  which  might  occur  to  be  settled  and 
set  right  at  some  future  occasion.  Assuming  that  all  that  was  done  here 
was  highly  beneficial,  and  that  a  great  benefit  was  acquired  to  the  estate 
by  the  exertion  of  the  trustee,  was  he  not  bound  to  do  his  utmost  for  the 
benefit  of  his  trust?  In  every  case  a  trustee  might  say  I  have  had  a 
great  deal  of  trouble  in  these  matters,  and  have  spent  a  considerable 
portion  of  my  time  and  trouble.  Is  that  the  rule  ?  I  am  not  aware  of 
the  existence  of  any  such  rule,  nor  has  any  authority  been  produced 
which  tends  in  the  least  to  show  that  this  is  the  way  in  which  trustees 
who  have  strictly  performed  their  duty,  and  thereby  procured  a  benefit 
to  the  estate,  are  to  be  dealt  with.  It  is  very  different  from  the  case 
where  a  trust  being  in  the  course  of  execution,  and  many  things  remain- 
to  be  done  which  can  be  done  beneficially  only  by  a  particular  trustee, 
who  cannot  from  his  situation  do  it  without  grievous  personal  loss,  and 
that  party  comes  to  the  court  and  states  that  he  is  in  a  situation  and  is 
willing  to  do  these  things,  but  that  he  cannot  consistently  with  his  own 
interest  proceed  with  such  duties,  and  gratuitously  devote  his  time  for 
the  benefit  of  the  trust.  In  such  a  case  it  is  competent  for  the  court, 
considering  what  is  beneficial  to  the  cestui  que  trust,  and  is  calculated  to 
promote  their  interest,  to  take  the  matter  into  consideration,  and  to  give 
proper  remuneration  to  that  person  who  alone  by  his  own  exertion  can 
produce  that  benefit,  fo^ 

*During  the  continuance  of  the  usury  laws  a  mortgagee  could  p^^^,,.. 
not,  as  a  general  rule,  have  bargained  for  a  compensation  exceed-  L  -• 
ing,  together  with  the  actual  interest,  the  legal  rate,  for  an  agreement 
of  this  kind  would  have  tended  to  usury. (p")  But  after  a  long  struggle 
certain  special  exceptions  were  established  in  favour  of  mortgagees  {not 
in  possession^  of  West  Indian  estates. (5-) 

As  a  trustee  will  not  be  permitted  to  charge  for  his  personal  care  and 
loss  of  time,  it  is  but  just  he  should  be  allowed  on  proper  occasions  to 
call  in  the  assistance  of  agents  at  the  expense  of  the  estate. 

Thus  a  trustee  or  a  mortgagee  may,  if  the  case  require  it,  appoint  a 
collector  of  rents. (/■) 

(0)  Bainbrigge  v.  Blair,  8  Beav.  595,  596. 
\p)   See  Chambers  v.  Goldwin,  9  Ves.  271. 

Iq)  See  the  history  of  tlie  struggle  detailed  in  Lord  Brougham's  judgment  in 
Leith  V.  Irvine,  2  M.  &  K.  277. 

(r)  Davis  v.  Deudj,  3  Mad.  170;  Stewart  v.  Hoare,  2  B.  C.  C.  663;  and  see 

March,  1857.— 30 


462  LEAVIN    ON    THE    LAW    OT    TRUSTS,    ETC. 

And  as  a  man  is  not  bound  to  be  his  own  bailiff,  if  a  trustee  or  mort- 
gagee employ  a  skilful  person  in  that  capacity,  the  salary  must  be 
allowed  Us)  at  least  the  court  will  grant  that  indulgence  where  the  estate 
is  at  such  a  distance  from  the  mortgagee's  residence,  that  he  must  have 
appointed  a  bailiff,  had  the  estate  been  his  own.(?) 

/\.n  executor  employed  a  person  who  had  been  his  clerk  to  transact 
some  business  for  him  relative  to  the  testator's  affairs,  and  the  master 
insisted  it  was  the  executor's  own  duty,  and  refused  to  allow  the  expense. 
But  Lord  Hardwicke  said,  <<  he  was  clear,  that  if  an  executor  paid  an 
attorney  for  his  trouble  and  attendance  in  the  management  of  the  estate, 
he  ought  to  be  repaid  the  sums  he  had  so  disbursed,"  and  ordered  a 
reference  to  the  master  to  tax  the  items  of  the  bill.(M) 

If  the  accounts  be  complicated,  and  the  executor  or  trustee  take  upon 
himself  to  adjust  and  settle  them,  although  it  may  occupy  a  great  deal 
of  his  time  and  attention,  the  principle  of  equity  is  that  he  cannot  claim 
a  compensation ;  but  if  he  choose  to  save  his  own  trouble  by  the  employ- 
i-^- -  ment  of  an  ^accountant,  he  is  entitled  to  charge  the  trust  estate 
L         -I  with  it  under  the  head  of  expenses. (i*) 

The  executor  of  a  trader  had  employed  an  agent  to  collect  debts  at  a 
commission  of  5  per  cent.  The  master  had  reduced  the  commission 
to  2i  per  cent.  ;  and,  the  executor  upon  that  ground  taking  an  excep- 
tion to  the  report,  Sir  J.  Leach  said,  "  Executors,  generally  speaking,  are 
not  allowed  to  employ  an  agent  to  perform  those  duties  which  by  accep- 
ting the  office  of  executors  they  have  taken  upon  themselves  ;  but  there 
may  be  very  special  circumstances  in  which  it  may  be  thought  fit  to  allow 
them  the  expenses  they  have  incurred  in  the  employment  of  agents  :  I 
have  some  doubt  whether  in  this  case  the  master  ought  to  have  made 
aiii/  allowance,  but  with  the  allowance  of  2^  per  cent,  the  executor  must 
be  content."  (w) 


SECTION  IL 

ALLOWANCES   TO   TRUSTEES   FOR   EXPENSES. 

Though  a  trustee  is  allowed  nothing  for  his  trouble,  he  is  allowed  every 
thing  for  his  expenses  out  of  ])ocket.{x\  <'  It  flows,"  said  Lord  Eldon, 
"  from  the  nature  of  the  office,  whether  expressed  in  the  instrument  or 

Wilkinson  v.  Wilkinson,  2  S.  &  S.  23T  ;  Re  Westbrooke,  2  Phill.  G31 ;  Nicholson 
V.  Tutin,  3  K.  &  J.  159. 

(s)  Bonithon  v.  Hockmore,  1  Yern.  316  ;  Chambers  v.  Goldwin,  9  Yes.  272,  per 
Lord  Eldon. 

{I)  Godfrey  v.  Watson,  3  Atk.  518,  per  Lord  Hardwicke. 

(m)  Macnamara  v.  Jones,  2  Dick.  587. 

{v)  New  V.  Jones,  Exch.,  Aug.  9,  1833,  cited  9  Jarm.  Prec.  338;  Henderson  v. 
M'lver,  3  Mad.  275. 

{w)  Weiss  V.  Dill,  3  M.  &  K.  26 ;  and  see  Giles  v.  Dyson,  1  Stark.  N.  P.  C.  32 ; 
Hopkinson  v.  Roe,  1  Beav.  180;   Day  v.  Croft,  2  Beav.  488. 

(z)  How  V.  Godfrey,  Rep.  t.  Finch,  361;  In  re  Ormsby,  1  B.  &  B.  190,  per  Lord 
Manners;  Hide  v.  Haywood,  2  Atk.  126;  Caffrey  v.  Darby,  6  Yes.  497,  per  Sir  W. 
Grant;  Godfrey  v.  Watson,  3  Atk.  518,  per  Lord  Hardwicke;  Feoflfees  of  Heriot's 
Hosp.  Y.  Ross,  12  CI.  &  Fin.  512,  515,  per  Lord  Cottcnham. 


OF    ALLOWANCES    TO    TRUSTEES.  463 

not;  that  the  trust  property  shall  reimburse  him  all  the  charges  and  ex- 
penses incurred  in  the  execution  of  the  trust. "(y) 

Thus  a  trustee  will  be  entitled  to  be  reimbursed  his  travelling  expen- 
ses,(s)  unless  they  be  improperly  incurred. (a) 

*So  a  trustee  may  give  fees  to  counsel,  and  shall  have  allow-  f-:i-cco-! 
ance  thereof.  (Z<)  L         -" 

And  if  a  trustee  be  sued  concerning  the  trust,  and  have  his  costs 
paid  him  as  between  party  and  party,  and  the  cestui  que  trust  afterwards 
file  a  bill  for  an  account,  the  trustee  will  be  allowed  his  necessary  costs 
in  the  former  suit,  and  will  not  be  concluded  by  the  amount  of  the 
taxation  ;(c)  but  of  course  a  trustee  will  have  no  claim  to  reimbursement 
out  of  the  trust  fund,  where  the  legal  proceedings  were  occasioned  by 
his  own  negligence  in  the  first  instance  ;((?)  or  were  improperly  instituted 
by  him  -Je)  and  a  trustee  will  not  be  allowed,  without  question,  whatever 
sums  by  way  of  costs  he  may  have  paid  his  solicitor,  for  the  bill,  as  be- 
tween trustee  and  cestui  que  trust,  though  not  submitted  to  a  regular 
taxation  (which  is  between  solicitor  and  client,)  will  be  moderated  by 
the  court  by  a  deduction  of  such  charges  as  may  appear  irregular  and  ex- 
cessive;(/)  and  the  trustee  will  not  be  allowed  interest  on  the  costs, 
though  at  the  time  he  paid  them  he  had  no  trust  moneys  in  his 
hands.([f\ 

Even  a  specific  remuneration  given  by  the  testator  to  his  trustees  for 
their  services  in  the  trust  is  no  reason  for  excluding  them  from  the 
usual  allowance  for  ex^yenses.  A  testator  bequeathed  to  his  acting  trus- 
tees for  the  time  being  the  yearly  sum  of  five  guineas  apiece  for  the 
care  and  trouble  they  might  have  in  the  execution  of  the  trust.  The 
testator's  estates  consisted  in  part  of  about  fifty  houses  in  London,  thirty- 
four  of  which  were  let  to  weekly  tenants.  The  trustees  employed  a 
person  to  collect  the  rents,  and  Sir  John  Leach  said,  "  The  annuity  was 
given  to  them  as  a  recompense  for  the  care  and  trouble  which  would 
attend  the  due  execution  of  the  ofl&ce ;  and  if  it  was  consistent  with  the 
due  execution  of  the  office  to  ^employ  a  collector,  they  were  ^^r^^-. 
entitled  to  the  annuity.  A  provident  owner  might  well  employ  L  '  J 
a  collector  in  such  a  case,  and  the  labour  of  such  a  collection  could  not 
be  imposed  on  the  trustee. "(A) 

{y)  Worrall  v.  Harford,  8  Yes.  8;  and  see  Dawson  v,  Clarke,  18  Ves.  254; 
Attorney-General  V.  Mayor  of  Norwich,  2  M.  &  C.  424. 

(z)  Ex  parte  Lovegrove,  3  D.  &  C.  763 ;  and  see  Ex  parte  Elsee,  1  Mont.  1 ;  Ex 
parte  Bray,  1  Rose,  144.  These  were  cases  of  assignees  who,  by  6  G.  4,  c.  16,  s. 
106,  (the  Bankrupt  Act  then  in  force,)  were  to  have  "all  just  allowances,"  but 
trustees  are  equally  entitled  to  all  just  allowances  virtute  officii. 

(a)  Malcolm  v.  O'Callaghan,  3  M.  &  C.  52  ;  and  see  Bridge  v.  Brown,  2  Y.  &  C. 
Ch.  Ca.  181.  [b)  Gary,  14. 

(c)  Amand  v.  Bradburne,  2  Ch.  Ca.  138  ;  Ramsden  v.  Langlcy,  2  Yern.  536  ;  and 
see  Fearns  v.  Young,  10  Ves.  184. 

{d)  Caifrey  v.  Darby,  6  Yes.  497.  {e)  Peers  v.  Ceeley,  15  Beav.  209. 

(/)  Johnson  v.  Telford,  3  Russ.  477.  As  to  the  right  of  the  cestui  que  trust  to 
obtain  a  taxation  as  against  the  solicitor,  see  Re  Dickson,  3  Jur.  N.  S.  29,  and 
cases  there  cited. 

(g)  Gordon  v.  Trail,  8  Price,  416. 

(h)  Wilkinson  v.  Wilkinson,  2  S.  &  S.  237;  and  see  Webb  v.  Earl  of  Shaftes- 
bury, 7  Yes.  480  ;  Fountaine  v.  Pellet,  1  Yesey,  juu.  337. 


464  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

A  regular  account  of  the  expenses  should  invariably  be  kept ;  but 
where  this  has  not  been  done  the  court  has  ordered  a  reasonable  allow- 
ance to  be  made  in  the  gross,  at  the  same  time  taking  care  that  the 
remissness  and  negligence  of  the  trustee  in  not  having  kept  any  account 
should  not  meet  with  any  encouragement.  Thus  in  Hethersell  v.  HalesQ 
the  trustee  put  in  a  general  claim  for  2500^.,  apparently  an  average  esti- 
mate of  the  expenses  he  had  incurred  in  the  trust.  ''  The  court/'  says 
the  reporter,  "  took  some  time  to  deliberate  what  was  fit  to  be  allowed  in 
a  matter  of  this  nature ;  and  having  considered  that  the  trustee  was  a 
friend  to  the  family,  and  undertook  the  trust  at  their  great  importunity, 
and  that  he  had  incurred  the  charge  of  surveying  the  whole  estate,  selling 
and  letting  the  same,  looking  after  tenants,  adjusting  their  accounts, 
calling  in  their  rents,  returning  moneys  to  creditors,  and  treating  with 
them  and  stating  their  debts,  and  procuring  and  agreeing  with  pur- 
chasers, and  for  law  charges,  and  for  keeping  servants  and  horses,  and 
employing  others  in  journeys  to  London  and  elsewhere,  and  his  care 
there  lying  from  home  a  long  time,  the  court  was  of  opinion  that  the 
trustee  might  well  deserve  the  whole  2500?.,  yet  would  not  allow  but 
2000Z.,  which  the  trustee  was  to  have." 

As  it  is  a  rule  that  the  cestui  que  trust  ought  to  save  the  trustee  harm- 
less from  all  damages  relating  to  the  trust,  so  within  the  reason  of  the 
rule,  where  the  trustee  has  honestly  and  fairly,  without  any  possibility 
of  being  a  gainer,  laid  down  money  by  which  the  cestui  que  trust  is  dis- 
charged from  a  loss,  or  from  a  plain  and  great  hazard  of  it,  the  trustee 
ought  to  be  repaid. (^) 

*The  expenses  incurred  by  a  trustee  in  the  execution  of  his 
L  ^^^J  office  are  treated  by  the  court  as  a  charge  or  lien  upon  the  estate, 
and  the  cestui  que  trust  or  his  assign  cannot  compel  a  conveyance  in 
equity  without  a  previous  satisfaction  of  all  the  trustee's  demands.0 

In  Trott  V.  Dawson(m)  Lord  Macclesfield  said,  «  Dawson,  the  assignee 
of  Archdale,  cannot  be  in  a  better  case  than  Archdale  under  whom  he 
claims.  Wherefore,  as  Archdale  would  not  have  had  the  assistance  of  a 
court  of  equity  without  paying  for  the  charge  and  trouble  which  Trott 
had  been  at  in  relation  to  the  trust,  so,  by  parity  of  reason,  the  defendant 
Dawson,  as  claiming  under  Archdale,  must  do  the  same  thing  which  it 
was  incumbent  upon  Archdale  to  have  done." 

The  decision  in  this  case  was  reversed  in  the  house  of  lords ;  and 
hence  the  inference  has  been  drawn  that  a  trustee  gives  credit  for  the 
expenses,  not  to  the  estate,  but  to  i\\e  person  of  the  cestui  que  trust,  and 
that  the  assign  is  not  liable  for  the  trustee's  expenses  incurred  in  the 
time  of  the  assignor.  The  case  is  reported  much  more  at  length  in 
Brown, (?()  and  the  circumstances  were  briefly  these: — An  eighth  of  the 
proprietorship  of  the  province  of  Carolina  had  been  conveyed  in  1684  to 

(i)  2  Ch.  Rep.  158. 

{k)  Balsh  V.  Hybam,  2  P.  W.  455,  per  Lord  King ;  and  see  Attorney-General  v. 
Mayor  of  Norwich,  2  M.  &  C.  424:  Attorney-General  v.  Pearson,  2  Coll.  581; 
Quarrell  v.  Beckford,  1  Mad.  282  ;  Sandon  v.  Hooper,  6  Beav.  246  ;  Bright  v. 
North,  2  Phill.  21G. 

(I)  See  Ex  parte  James,  1  D.  &  C.  272  ;  Hill  v.  Magan,  2  Moll.  460. 

(m)  1  P.  W.  TSO.  [n)   7  B.  P.  C.  266. 


OF    ALLOWANCES    TO    TRUSTEES.  465 

Amy  in  trust  for  four  persons.  The  whole  equitable  interest  had  become 
subsequently  vested  in  John  Archdale,  who  settled  it  upon  Dawson  and 
his  wife.  Dawson  filed  a  bill  against  the  co-heirs  of  Amy  for  a  convey- 
ance ;  and  the  question  between  the  parties  was,  whether  the  expenses 
incurred  by  Amy  ought  or  not  to  be  first  paid  and  satisfied.  On  a  refer- 
■  ence  to  the  master  it  was  found  that  Amy  had  been  active  in  the  trust 
from  1684  to  1697,  and  during  that  time  had  expended  various  sums  of 
money  ;  that  the  proprietors  of  the  province  had  ordered  Amy  one  grant 
of  12,000  acres ;  had  created  him  landgrave,  with  a  further  grant  of 
48,000  acres ;  and  had  also  presented  him  with  one  of  the  eight  pro- 
prietorships, which  had  fallen  in  by  the  death  of  a  proprietor  without 
heirs.  It  was  entered  on  the  books  of  the  proprietors  in  1698,  that  the 
grants  *had  been  made  to  Amy  for  his  services  generally,  and  [-;i:-p-i-i 
'particularly  for  Ids  faitliful  d{sc]iar(je  of  the  trust ;  that  Amy  L  -I 
had  agreed  to  convey  the  estate  on  request  to  W.  J.,  who  was  to  succeed 
him  in  the  office,  and  by  whom  subsequently  the  trust  was  exclusively 
managed.  It  did  not  appear  that  the  first  two  grants  had  even  been 
perfected,  or  had  become  beneficial;  but  the  grant  of  the  proprietorship 
had  been  accepted  and  acted  upon.  It  was  under  these  circumstances 
that  Lord  Macclesfield  directed  a  conveyance  of  the  estate,  subject  to  the 
payment  of  Amy's  expenses ;  but  on  appeal  to  the  house  of  lords  the 
decree  below  was  reversed.  The  question  therefore  appears  to  have 
been^  not  whether  Amy's  expenses,  due  from  the  assignor,  were  to  be 
regarded  as  a  lien  upon  the  estate,  but  whether  the  grants  made  to  Amy 
had  not  been  accepted  by  him  as  a  full  compensation. 

But  although  the  trustees  themselves  are  creditors  upon  the  trust  fund 
for  the  amount  of  their  expenses,  the  persons  who  are  employed  by  them 
as  solicitors,  surveyors,  &c.,  have  no  such  lien.  And  the  law  is  so  settled, 
notwithstanding  an  express  declaration  by  the  settlor  that  the  trustee 
shall  in  the  first  place  jiciy  the  expenses  of  the  trust,  and  though  the  trus- 
tees themselves  be  charged  to  be  insolvent.  In  every  deed  is  imjylied  a 
direction  to  pay  the  costs  and  expenses,  and  expressio  eorum  qua'  tacite 
insimt  nihil  operatur.  It  would  be  a  mischievous  principle  to  hold,  that 
every  person  wuth  whom  the  trustees  had  incurred  a  just  and  fair  demand 
might  sue  the  trustees,  and  come  for  an  account  of  the  whole  administra- 
tion.(o)  And,  vice  versa,  the  agents  of  the  trustees  are  accountable  to 
their  employers  only,  the  trustees,  and  not  to  the  cestuis  que  t}-ust.Q)^ 
But  under  the  special  provisions  of  the  Solicitors  Act(<^)  the  cestuis  que 
trust  may  at  the  discretion  of  the  court  obtain  an  order  to  tax  the  bill 
of  the  solicitor  employed  by  the  trustees, (;•)  and  generally  the  cestuis 
^que  trust  may  proceed  against  the  agents  where  they  have  not  pcQ.^-i 
confined  themselves  to  the  duties  of  agents,  but  by  accepting  a  L       "J 

(o)  Worrall  v.  Harford,  8  Ves.  4,  see  8  ;  Ilfill  v.  Laver,  1  Hare,  oYl  ;  FeofiFees  of 
Heriot's  Hospital  v.  Ross,  12  CI.  &  Fin.  507 ;  Francis  v.  Francis,  5  De  Gex,  Mac.  & 
Gor.  108. 

(p)  Myler  V.  Fitzpatrick,  6  Mad.  360,  per  Sir  J.  Leach;  and  see  Langford  v. 
Mahony;  2  Conn.  &  Laws.  317;  Lockwood  v.  Abdy,  14  Sim.  441;  Keane  v. 
Robarts,  4  Mad.  350.  (q)  G  &  7  Vict.  cap.  73,  s.  39. 

(r)  As  to  the  circumstances  under  which  the  court  will  direct  taxation  at  the 
instance  of  a  ceiiui  que  trust  see  Re  Dickson,  3  Jur.  N.  S.  and  cases  there  referred  to. 


466  LEW  IN    ON    THE    LAW    OF    TRUSTS,    ETC. 

delegation  of  the  whole  trust,(s)  or  by  fraudulently  mixing  themselves 
up  with  a  breach  of  trust,(^)  have  themselves  become  trustees  by  con- 
struction of  law. 

If  a  person  be  trustee  of  different  estates  for  the  same  cestuis  que  trust, 
under  the  same  investment,  and  he  incur  expenses  on  account  of  one 
estate  from  which  he  has  no  funds,  it  is  presumed  that  he  may  apply  to 
their  discharge  any  money  which  may  have  come  to  his  hands  from  any 
other  of  the  estates.  But  he  would  not  be  justified  in  mixing  up  any 
claims  under  one  instrument  of  trust  with  those  under  another.(M) 

If  the  trust  estate  fail,  it  seems  the  trustee  may  then  file  a  bill  against 
the  cestui  que  trust  on  whose  hehalf  and  at  whose  request  he  acted,  to 
recover  from  him  personally  the  amount  of  the  money  expended. (^') 

In  a  late  case  it  was  held  that  a  trustee  who,  in  that  character,  has 
incurred  a  legal  liability,  may  call  upon  the  cestui  que  trust  in  equity  to 
indemnify  the  trustee  against  the  liability,  even  before  an  actual  loss  has 
accrued.  Mr.  Gillan  mortgaged  a  hundred  shares  in  the  Western  Dis- 
trict Banking  Company  to  Mr.  Phene,  to  secure  1000^.  The  shares 
were  transferred  in  the  books  of  the  company  into  the  name  of  Mr. 
Phene.  The  1000/.  was  afterwards  paid  off,  and  Mr.  Gillan  required 
Mr.  Phene  to  re-transfer  the  shares ;  but  before  this  could  be  done  a 
creditor  of  the  company  recovered  judgment  against  the  public  officer  of 
the  company,  and  notice  was  given  to  Mr.  Phene  that  unless  he  paid 
3?.  10s.  per  share  by  a  day  named,  execution  would  be  levied  upon  him 
for  the  full  amount  of  the  judgment.  Upon  that  3Ir.  Phene  filed  a  bill 
P^_  „„  against  Mr.  Gillan,  praying  the  reimbursement  of  certain  *ex- 
L  J  penses,  and  an  indemnity  against  the  liability.  The  court 
observed,  "  The  effect  of  the  payment  of  the  debt,  combined  with  the 
subsequent  transactions  was,  in  my  opinion,  to  make  the  plaintiff  a  mere 
trustee  for  the  defendant,  and  I  cannot  doubt  but  that  a  trustee,  circum- 
stanced as  the  plaintiff  was,  has  a  right  to  be  indemnified  by  his  cestui 
que  trust,  against  all  liabilities  which  he  may  properly  have  incm-red  in 
that  character.  His  liability  in  this  court  is  that  of  his  cestui  que  trust. 
I  might  take  the  analogous  case  of  a  trustee  of  leasehold  property  under 
covenants  for  the  benefit  of  a  cestui  que  trust.  It  is  quite  clear,  I  appre- 
hend, that  if  such  trustee  were  obliged  to  pay  money  for  the  benefit  of 
his  cestui  que  trust ,  he  would  have  a  right  of  indemnity  over.  It  was 
contended,  on  behalf  of  the  defendant,  that  in  the  case  of  a  trustee  and 
cestxd  que  trust,  the  trustee  cannot  proceed  in  this  court  until  he  has 
been  actually  damaged,  although,  if  he  had  paid  anything,  he  might 
have  come  to  be  indemnified.  I  do  not  accede  to  that  proposition.  If 
it  was  a  suhsistinr/  liability,  the  trustee  is  not  bound  to  be  out  of  funds 
for  a  moment.  In  this  case  a  judgment  was  recovered  against  a  public 
officer  of  the  company.     Prima  facie,  the  plaintiff  is  liable  as  a  share- 

(s)  Myler  v.  Fitzpatrick,  6  Mad,  360 ;  and  see  Pollard  v.  Downes,  1  Eq.  Ca. 
Ab.  6. 

(0  See  Fyler  v.  Fjler,  3  Beav.  550  ;  Alleyne  v.  Darcy,  4  Ir.  Ch.  Re.  199 ;  Port- 
lock  V.  Gardner,  1  Hare,  60G ;  and  Ex  parte  W'oodin,  3  Mont.  D.  &  D.  399 ;  Attorney- 
General  V.  Corporation  of  Leicester,  7  Beav.  176;  Pannell  v.  Hurley,  2  Coll.  241 ; 
Bodenham  v.  Hoskyns,  2  De  Gex,  Mac.  &  Gor.  903. 

(m)  Price  v.  Loaden,  21  Beav.  508.  {v)  Balsh  v.  Hyham,  2  P.  W.  453. 


now    A    TRUSTEE    MAY    OBTAIN    HIS    DISCHARGE.     4G7 

holder,  and  prima  facie  he  has  a  right  to  be  indemnified  in  the  way 
suggested."  (i6') 

It  will  be  observed  that  the  claim  to  reimbursement  from  the  nMal 
que  trust  has  been  admitted,  where  the  trustee  has  acted  at  the  request 
or  on  behalf  of  the  cestui  que  trust,  he  being  competent;  but  in  the 
absence  of  such  request,  or  of  an  implied  assent,  or  where  the  cestuis 
que  trust  are  under  disability  as  infants,  the  trustee  can  have  no  right 
against  the  cestuis  que  trust  on  the  ground  of  Vi^y  personal  obligation, (.<•) 
though  the  trustee  would  have  the  fullest  lien  upon  the  trust  fund,  and 
no  benefit  from  it  would  be  allowed  to  the  cestui  que  trust  until  the  trus- 
tees were  properly  indemnified.  But  *of  course  the  trustee  can-  r^^Q^-i 
not  claim  this  indemnity  in  respect  of  an  advance  that  was  not  L  J 
properly  made  in  the  execution  of  the  trustee's  duty. 

Questions  occasionally  arise  respecting  the  proper  fund  for  payment  of 
expenses.  In  one  case(y)  Sir  John  Leach  decided  that  a  provision  made 
in  a  will  for  payment  of  debts  and  funeral  and  testamentary  expenses 
out  of  a  particular  fund,  did  not  make  that  fund  primarily  liable  for 
costs.  But  in  a  subsequent  case  Lord  Langdale,  master  of  the  rolls, 
appears  to  have  arrived  at  a  different  conclusion. (2)  Again,  a  trust  in 
a  will  of  real  and  personal  estate  to  pay  out  of  the  personal  estate  the 
expenses  of  probate  and  <'  the  execution  of  the  trusts  of  the  will,"  does 
not  authorize  the  trustee  to  apply  the  fund  in  payment  of  any  otlier 
expenses  than  what  would  be  payable  by  the  execiitors  in  that  character, 
and  therefore  does  not  authorize  the  application  of  the  personal  estate  in 
payment  of  the  expenses  incurred  in  the  execution  of  trusts  declared  of 
the  testator's  real  estate. (a) 


♦CHAPTER   XXL  [*565] 

HOW   A   TRUSTEE    MAY    OBTAIN    HIS   DISCHARGE    FROM   THE   OFFICE. 

We  shall  conclude  the  subject  of  the  office  of  trustee  by  considering 
in  what  manner  he  may  divest  himself  of  that  character. 

The  only  modes  by  which  he  can  accomplish  this  object  are  the  fol- 
lowing :  First — He  may  have  the  universal  consent  of  all  the  parties 
interested ;  or.  Secondly— He  may  retire  by  virtue  of  a  special  power 
contained  in  the  instrument  creating  the  trust;  or,  Thirdly— He  may 
obtain  his  release  by  application  to  the  court. 

I.  As  no  cestui  que  trust  who  concurs  in  a  breach  of  duty  by  the  trus- 
tee can  afterwards  call  him  to  account  for  the  mischievous  consequences 

(w)  Phene  v.  Gillan,  5  Hare,  3,  pp.  9,  13. 

(x)  Thus  in  Collinson  v.  Lister,  20  Beav.  308,  where  the  advances  were  not 
proper  the  M.  R.  said,  "  No  assets  exists  out  of  which  the  executor  could  seek  for 
payment,  aud,  of  course,  it  could  not  be  contended  that  the  plaintiffs  (who  were 
the  cestuis  que  trust,)  were  liable  to  repay  the  advances." 

(y)  Brown  v.  Groombridge,  4  Mad.  495.        (z)  Wilson  V.  Heaton,  11  Beav.  492. 

(a)  Lord  Brougham  v.  Lord  Poulett,  19  Beav.  119. 


468  LEW  IN    ON    THE    LAAV    OF    TRUSTS,    ETC. 

of  the  act,  it  follows,  that  where  all  the  cestuis  que  trust  lend  their  joint 
sanction  to  the  trustee's  dismissal,  they  are  precluded  from  ever  visiting 
him  with  damages  on  the  ground  of  delegation  of  his  ofl&ce.(o) 

But  the  trustee  must  first  satisfy  himself  that  all  the  cestuis  que  trust 
are  parties,  for  even  in  the  case  of  a  numerous  body  of  creditors  the 
consent  of  the  majority  is  no  estoppel  as  against  the  rest.(i) 

And  the  cestuis  que  trust  who  join  must  of  course  be  sui  juris,  not 
femes  covert  or  infants,  who  have  no  legal  capacity  to  consent.  But  a 
/erne  covert  is  considered  to  be  sui  juris  as  to  her  separate  estate  where 
there  is  no  restraint  against  anticipation.(c) 

*If  the  parties  interested  in  the  trust  fund  be  not  all  in  exist- 
L  "^  J  ence,  as  where  the  limitation  of  the  property  is  to  children  un- 
born ,Ht  is  clear,  that  as  the  trustee  cannot  have  the  sanction  of  all  the 
parties  interested,  he  cannot  with  safety  be  discharged  from  the  trust. 

II.  A  trustee  may  retire  by  virtue  of  a  special  power  contained  in  the 
original  instrument. 

The  person  who  creates  the  trust  may  mould  it  in  whatever  form  he 
pleases,  and  may  therefore  provide,  that  on  the  occurrence  of  certain 
events  and  the  fulfilment  of  certain  conditions,  the  original  trustee  may 
retire,  and  a  new  trustee  be  substituted. 

The  form  of  power  most  commonly  in  use  is,  that  in  case  any  trustee 
shall  happen  to  die,  or  be  abroad  for  twelve  calendar  months,  or  be  de- 
sirous of  being  discharged  from^  or  refuse,  decline,  or  become  incapable 
to  act  in  the  trusts,  it  shall  be  lawful  for  the  cestui  que  trust  to  whom  the 
power  may  be  given,  or,  as  the  proviso  is  frequently  worded,  for  the  sur- 
vivino;  or  continuino;  trustee,  or  the  executors  or  administrators  of  the 
survivor,  by  deed  or  writiug,  to  nominate  some  other  person  to  be  a  trus- 
tee ;  and  the  power  then  proceeds  to  declare  that  the  trust  estate  shall 
forthwith  be  vested  jointly  in  the  persons  who  are  in  future  to  compose 
the  body  of  trustees ;  and  that  the  new  or  substituted  trustee  shall, 
either  before  or  after  the  trust  estate  shall  have  been  so  vested,  be  capa- 
ble of  exercising  all  the  same  powers  as  if  he  had  been  originally  named. 

As  it  has  been  made  a  question  how  far  a  trustee  appointed  by  the 
court  can  exercise  the  discretionary  powers  of  the  original  trustees,  it 
would  be  proper  to  extend  the  common  form  by  adding,  that  the  powers 
of  the  settlement  shall  be  exercised  by  "every  trustee,  whether  appointed 
under  the  present  power,  or  by  the  Court  of  Chancery,  or  other  compe- 
tent authority."  It  has  also  been  found  useful  in  practice,  where  the 
power  of  appointment  is  given  to  the  trustee,  to  limit  it  to  "  the  surviv- 
ing, or  continuing,  or  other  trustee. "((Z) 

r-^rp--,  *The  words  commonly  inserted,  which  expressly  confer  all 
L  -■  powers  on  the  new  trustees  before  the  estate  has  actually  been 
conveyed,  show  that  a  doubt  has  been  felt  by  the  profession,  whether  in 
the  absence  of  these  words  the  powers  could  be  exercised  until  after  con- 
veyance, and  the  late  vice-chancellor  of  England,  in  a  case  where  the 
words  referred  to  did  not  occur,  but  there  was  simply  a  power  of  uomi- 

(a)  Wilkinson  v.  Parry,  4  Russ.  276,  per  Sir  J.  Leach. 

(h)  See  supra,  46-1,  note  {n).  (c)  See  infra,  c.  25,  s.  3. 

{d)  Sec  Lord  Camovs  v.  Best,  19  Beav.  414. 


HOW    A    TRUSTEE    MAY    OBTAIN    HIS    DISCHARGE.    469 

nation  and  no  direction  for  a  conveyance,  expressed  his  opinion  to  be  that 
the  person  to  be  appointed  was  not  invested  with  the  character  of  trustee 
until  he  had  both  been  nominated  to  the  office  by  the  donee  of  the  power, 
and  the  trust  property  had  also  been  duly  conveyed  or  assigned. (e]  <'  The 
settlor  meant,'^  observed  the  vice-chancellor,  "  that  the  person  to  be  nom- 
inated should  be  a  trustee  just  as  the  others  were.  If  he  be  nominated 
and  no  conveyance  executed,  and  all  the  others  die,  how  is  he  to  execute 
any  trust,  for  he  has  no  estate. "(/) 

However  in  a  more  recent  case  before  the  present  master  of  the  rolls,(^) 
A.  and  B.  were  appointed  trustees  of  a  settlement,  and  after  a  lapse  of 
eighteen  years  A.  disclaimed,  and  B.  was  desirous  of  retiring,  and  the  donee 
of  the  power  nominated  C.  in  the  place  of  A.,  and  D.  in  the  place  of  B., 
and  B.  professed  to  assign  the  trust  fund  (consisting  of  a  share  of  3000/. 
in  the  hands  of  trustees  of  another  settlement)  to  C.  and  1).  who  filed 
their  bill  without  their  cesfiiis  que  trust  to  have  the  trust  fund  paid  to 
them.  It  was  objected  against  the  validity  of  the  appointment  that  A. 
had  acted,  and  that  consequently  B.  could  not  alone  pass  the  trust  fund, 
and  that  therefore  the  appointment  of  trustees  was  incomplete.  The 
master  of  the  rolls,  however,  held  that,  whether  A.  had  acted  or  not,  C. 
and  I),  were  duly  appointed,  and  entitled  to  call  for  payment  of  the  trust 
fund.  His  honor  said  in  his  judgment,  "I  am  of  opinion  that  the  ap- 
pointment of  new  trustees,  and  the  conveyance  of  the  trust  property  to 
them  constitute  two  distinct  and  separate  matters,  and  that  the  second, 
the  transfer,  can  only  take  place  where  the  first  or  the  appointment  is 
complete.  Were  it  is  not  so,  in  some  cases,  probably  in  all,  no  valid 
appointment  of  *new  trustees  could  finally  be  made."  And  his  r^xpo-i 
honor  subsequently  pointed  out  various  difficulties  which  would  L  -• 
arise  from  holding  that  transfer  of  the  trust  fund  was  necessary  to  per- 
fect the  appointment.  The  particular  facts  of  the  case  at  the  rolls  sug- 
gest the  observation  that  the  subject-matter  settled  was  a  mere  equitable 
interest  in  a  fund,  incapable  of  assignment  strictly  so  to  speak ;  but  un- 
questionably the  doctrine  of  the  late  vice-chancellor  of  England  must  be 
considered  as  shaken ;  and  the  views  of  the  master  of  the  rolls  seem  to 
derive  some  support  from  the  practice  of  the  court  allowing  persons  nom- 
inated trustees  to  present  petitions  for  a  transfer  of  the  trust  fund,  or  a 
conveyance  or  vesting  order  of  the  trust  estate.  (//)  Looking  to  the  deci- 
sion only  of  the  master  of  the  rolls,  it  may  be  regarded  as  still  an  open 
question,  whether  a  newly  appointed  trustee  ought  not,  before  proceed- 
ing to  exercise  a  power  of  sale  of  real  estate  (the  case  before  the  vice- 
chancellor  of  England,)  to  procure  a  conveyance  to  himself,  but  accord- 
ing to  the  views  of  the  master  of  the  rolls  this  would  clearly  be  unne- 
cessary. 

Should  the  trust  estate  consist  of  mo7iei/  in  the  funds,  or  other  property 
transferable  in  the  books  of  any  company,  then  by  one  and  the  same  deed 
the  donee  of  the  power  may  nominate  the  new  trustee,  and  the  old  and 
new  trustee  may  execute  a  declaration  of  trust  of  the  stock  or  other 

(e)  Warburton  v.  Sandys,  14  Sim.  622.  (./")  lb.  631. 

(g)  Noble  v.  Meymott,  14  Beav.  471. 

(//)  la  re  Law,  4  Beav.  509  ;  see  In  re  Odell,  Hayes  Ir.  Excli.  Rep.  257. 


470  LEWIN    ox    THE    LAW    OF    TRUSTS,    ETC. 

property  intended  to  be  transferred,  and  after  the  execution  of  the  trust 
the  stock  may  be  transferred  into  their  joint  names  accordingly. (/)  If 
the  trust  estate  consist  of  chattels  real,  or  other  chattels  personal  not 
transferable  in  the  books  of  any  company,  the  parties  cannot  effectuate 
their  object  but  at  the  trouble  and  expense  of  two  deeds.  By  the  first, 
the  old  trustee  will  assign  the  chattel  interest  to  A.,  and  then  A.,  by  in- 
dorsement, will  reassign  it  to  the  old  and  new  trustee  as  joint  tenants. (A-) 
If  the  trust  estate  be  oi  n  freehold  nature,  and  by  the  terms  of  the  instru- 
ment of  trust  the  whole  legal  estate  is  to  be  vested  in  the  trustees,  there 
r*p;rQn  ^^^^^^  ^^  general,  no  other  ^machinery  than  a  simple  conveyance 
L  -I  under  the  Statute  of  Uses ;  for  the  old  trustee  may  release  the 
lands  to  the  joint  use  of  himself  and  the  new  trustee,  and  the  statute 
will  operate  to  transfer  the  possession. (?)  But  in  settlements  ichich  invest 
the  trustees  with  poicers,  the  established  form  of  the  proviso  has  intro- 
duced the  necessity  of  resorting  to  the  use  of  two  deeds.  The  language 
of  the  clause  is,  that  "  the  trust  estate  shall  be  conveyed  in  such  manner 
that  the  same  may  be  vested  in  the  old  and  new  trustee  to  the  uses,  trusts, 
intents,  and  purposes  of  the  settlement."  Now,  the  meaning  obviously 
is,  that,  as  by  the  settlement  an  estate  to  preserve  contingent  remainders, 
or,  it  may  be,  some  other  interest,  was  limited  to  the  trustees  who  are 
armed  with  the  powers,  should  either  of  the  trustees  die,  &c.,  and  a  new 
trustee  be  appointed,  such  estate  ^)t<r  autre  vie,  or  other  interest,  should 
be  transferred  to  the  old  and  new  trustee  jointly.  But  the  practitioner, 
ex  major i  cauteld  has  attached  to  the  words  the  possible,  however  im- 
probable construction,  that  on  the  appointment  of  a  new  trustee  the  whole 
settlement  should  be  re-opened,  and  that  the  fee-simple  should  ah  integro 
be  conveyed  to  the  old  and  new  trustee  to  all  the  same  uses,  &c.,  as  were 
declared  by  the  original  deed.  For  accomplishing  this  object  it  is  ne- 
cessary that  two  instruments  should  be  prepared.  By  the  first, (?>i)  the 
new  trustee  will  be  nominated  by  the  donee  of  the  power,  the  old  uses  of 
the  settlement  will  be  absolutely  revoked  (the  proviso,  it  is  said,  imply- 
ing an  authority  for  that  purpose,)  and  the  use  will  be  appointed  to  A. 
and  his  heirs,  and  the  estate  and  interest  vested  in  the  old  trustee  will 
be  assured  unto  and  to  the  use  of  A.  and  his  heirs,  by  way  of  convey- 
ance. When  this  has  been  effected  by  one  deed,  and  A.  has  become 
seised,  or  is  supposed  to  have  become  seised,  of  the  inheritance  in  fee- 
simple,  he  may  then,  by  lease  and  release,  which  may  be  indorsed  on  the 
former  release,(;i)  reconvey  the  premises  to  the  old  and  new  trustee  to 
the  uses,  trusts,  &e.,  of  the  settlement,  in  the  same  manner  as  if  the  new 
trustee  had  been  originally  appointed.  Thus,  if  the  real  intention  was, 
r*'S7m  ^^^^  *^°  ^^^^  appointment  of  a  new  trustee  a  *seisin  to  serve  the  uses 
■-  J  should  be  vested  in  the  old  and  new  trustee  jointly,  then  a  power 
of  revocation  was  implied,  and  the  direction  has  been  complied  with.  If 
the  settlor  had  no  such  intention,  then  there  was  no  implied  power  of 

{i)  See  Appendix  No.  IV. 

[k)  See  Appendix  No.  VII.  If  the  person  to  assign  is  not  to  be  one  of  the  trus- 
tees, as  where  the  assignment  is  by  an  executor  or  administrator  of  a  surviving 
trustee,  of  course  only  one  deed  is  necessary. 

{I)  See  Append.  No.  VI.  (m)  See  Appendix  No.  VII. 

[n)  See  Appendix  No.  VIII. 


now    A    TRUSTEE    MAT    OBTAIN    HIS    DISCHAIIGE.     ^71 

revocation,  and  tlie  affected  exercise  of  it  is  a  nullity,  and  tlie  conveyance 
hy  the  old  trustee,  and  the  reconveyance  to  the  old  and  new  trustee  has 
served  only  to  pass  the  actual  and  vested  interest. 

It  must  of  course  be  carefully  ascertained  by  the  trustee  that  the  cir- 
cumstances under  which  he  retires  from  the  trust  are  precisely  those 
which  the  settlor  contemplated  in  the  terms  of  the  proviso;  for  if  the 
case  be  not  warranted  by  the  power,  the  trustee  who  resigns  will  be  made 
responsible  for  all  the  mischievous  consequences,  just  as  if  he  had  dele- 
gated the  oflBce. 

It  is  somewhat  surprising,  considering  the  frequency  of  this  power, 
how  few  questions  until  lately  arose  upon  its  construction. 

In  Sharp  v.  Sharp, (o)  heard  in  the  Court  of  Queen's  Bench  the  terms 
in  which  the  power  was  expressed  were  as  follows  : — "  In  case  eitlier  of 
the  trustees  the  said  A.  and  B.  shall  happen  to  die,  or  desire  to  be  dis- 
charged from,  or  neglect,  or  refuse,  or  become  incapable  to  act  in,  the 
trusts,  it  shall  be  lawful  for  the  survivors  or  survivor  of  the  trustees  so 
acting  in  the  trusts,  or  the  executors  or  administrators  of  the  last  surviv- 
ing trustee,  by  any  writing,  &c.,  to  nominate  a  new  trustee."  Neither 
of  the  trustees  being  willing  to  act  in  the  trust,  they  executed  a  convey- 
ance to  two  other  persons  intended  to  be  new  trustees  ;  and  the  question 
was  raised,  whether  the  power  of  appointment  had,  under  the  circum- 
stances, been  effectually  exercised,  and  it  was  determined  in  the  negative. 
Lord  Tenterden  said,  "By  the  word  'survivor'  I  understand  merely  the 
trustee  '  continuing  to  act  /  for  it  seems  to  have  been  throughout  the 
intention  of  the  testator,  that,  in  case  of  the  death  or  incapacity  or  refusal 
of  some  one  of  the  trustees,  the  remaining  trustee  who  had  been  named 
by  him,  and  who  had  been  the  object  of  his  confidence,  should  have  the 
power  of  associating  with  himself  some  other  person  in  the  execution 
*of  the  trust :  but  it  would  be  giving  a  much  larger  construction  p-y;^-i 
to  these  words  than  they  fairly  import  if  we  were  to  say,  that  the  1-  ^  -• 
trustees,  in  the  event  of  the  whole  class  declining  to  act,  might  nominate 
such  other  persons  as  they  might  think  fit  to  perform  their  duties." 
Mr.  Justice  Bayley  observed,  "The  word  '  either'  is  not  uselessly  intro- 
duced :  it  is  in  effect  a  proviso  that  if  ciiher  of  the  trustees  named  in 
the  will  should  refuse  to  act,  still  that  the  testator  should  have  the  bene- 
fit of  the  judgment  of  the  other,  who  would  act  in  concurrence  with  such 
other  individ'ual  as  he  might  nominate.  The  testator  may  have  had  good 
reason  for  confining  the  power  to  the  care  of  one  trustee,  for  he  may  have 
had  special  confidence  in  the  trustees  named  by  himself,  and  so  long  as 
either  of  those  persons  acted  in  the  trust  he  might  think  his  property 
safe.  But  if  we  were  to  read  these  words  as  if  they  were  '  both  or  either,' 
the  case  would  be  different.  If  both  the  persons  should  decline  to  act, 
the  testator  might  naturally  object  to  their  delegating  their  trust  to  other 
persons,  and  might  then  have  thought  it  better  that  his  property  should 
be  left  to  the  care  of  a  court  of  equity.  And  I  apprehend  that  under 
the  words  of  this  power  the  testator  meant  by  the  word  •  actiug'  to  de- 
signate those  who  had  taken  upon  themselves  to  perform  some  of  the 

(o)  2  B.  &  A.  405 ;  Pearce  v.  Pearce,  22  Breav.  248. 


472  LEW IX    ON    THE    LAW    OF    TRUSTS,    ETC. 

trusts  mentioned  in  the  will,  and  that  he  did  not  contemplate  one  who  in 
limine  refused  to  act.  And  it  seems  to  me,  that  a  person  who  does  so 
refuse  cannot  be  considered  as  acting  in  any  of  the  trusts.  Then  the 
word  'survivor'  must  mean  the  < continuing'  trustee,  as  contradistin- 
guished both  from  those  who  might  refuse  to  act  and  those  who  might 
be  desirous  to  discontinue  acting." 

In  this  case  hotli  the  trustees  disclaimed ',  and  it  was  decided  that, 
under  such  circumstances,  they  had  no  power  to  appoint  others.  But 
supposing  one  trustee  disclaims,  may  not  the  continuing  trustee  appoint 
another,  or  do  the  words  of  the  power,  "if  any  trustee  shall  refuse  or 
decline"  apply,  not  to  the  case  of  a  disclaimer,  but  only  to  a  refusal 
after  having  acted?  Although  the  point  decided  in  Sharp  v.  Sharp 
was  as  stated  above,  yet  from  the  language  of  the  judges  it  appears,  that, 
had  only  one  trustee  disclaimed,  the  other  might  have  exercised  the 
P^.  -.  power;  and  such  it  is  presumed  is  clearly  the  *rule  when  there 
L  "^-1  is  nothing  to  narrow  the  meaning  of  the  words  ''refusing  or  de- 
clining." There  generally  follows  in  the  power  a  direction  that  the 
estate  "  vested  in  the  trustee  so  refusing  or  declining"  shall  be  trans- 
ferred to  the  new  trustee ;  and  hence  it  has  been  argued,  that  as  no 
estate  vests  in  a  disclaiming  trustee,  the  power  did  not  contemplate  such 
a  case.  However,  there  seems  to  be  but  little  weight  in  the  argument ; 
for  when  it  is  said  that  the  words  "  if  any  trustee  shall  refuse  or  decline" 
apply  to  disclaimer,  it  is  not  meant  that  they  do  not  also  apply  to  a  sub- 
sequent refusal.  At  all  events,  therefore,  the  direction  for  the  transfer 
of  the  estate  is  not  nugatory,  (p) 

It  has  sometimes  been  doubted  whether  the  words  "refusing"  or  "de- 
clining" do  not  refer  exclusively  to  disclaimer,  and  have  no  application 
to  the  ease  of  a  trustee  refusing  after  having  accepted  the  trust  to  act 
any  longer  in  it.  This  proposition  is  also  untenable,  as  it  excludes  the 
application  of  the  power  to  the  very  case  which  was  mainly  contemp- 
lated. Q)p) 

In  a  late  case  a  testator  appointed  three  trustees  with  the  usual  power 
of  appointment  of  new  trustees,  and  two  trustees  having  died  in  the  tes- 
tator's lifetime,  the  late  vice-chancellor  of  England  adverting  to  the 
question  whether  the  surviving  trustee  could  appoint  new  trustees,  ob- 
served that  "it  was  very  questionable  at  the  least  whether  the  survivor 
could  appoint,  for  it  seemed  to  be  clear  that  the  case  which  the  testator 
contemplated  was  that  of  a  vacancy  in  the  trusteeship  occasioned  by 
death,  refusing  to  act,  &c.,  which  was  capable  of  being  supplied  by  a 
continuing  or  acting  trustee  which  was  not  the  case  that  had  hap- 
pened,((^)  and  his  honour  in  a  subsequent  case  decided  to  that  effect  ;(?A 
but  this  was  a  narrow  construction  of  the  power,  and  it  has  since  been 
ruled  that  a  trustee  who  has  survived  the  testator  may  appoint  new 
trustees  in  the  place  of  those  who  pre-deceased  the  testator,  (x) 

(p)  See  In  re  Roche,  1  Conn.  &  Laws.  306  ;  Walsh  v.  Gladstone,  14  Sim.  2  ; 
Mitchell  V.  Nixon,  1  Ir.  Eq.  Rep.  155  ;  Crook  v.  Ingoldsby,  2  Ir.  Eq.  Rep.  375. 

(pp)  See  Re  Armstrong's  Settlement,  5  Weekly  Rep.  448,  and  Re  Woodgate's 
Settlement,  ib.,  in  reference  to  the  question  there  adverted  to. 

(?)  W^alsh  V.  Gladstone,  14  Sim.  2.  (r)  Winter  v.  Rudge,  15  Sim.  596. 

(.?}  Re  Hadley,  5  De  Gex  &  Sm.  67  ;  and  see  Noble  v.  Mevmott,  14  Beav.  477. 


now    A    TRUSTEE    MAY    OBTAIN    HIS    DISCHARGE.    473 

*In  Morris  v.  Preston(<)  tlie  proviso  was,  that  "in  case  of  the  p^.„„-. 
death  of  any  or  either  of  the  two  trustees  during  the  lives  of  the  L  J 
husband  and  wife  or  the  life  of  the  survivor,  the  husband  and  wife  or 
the  survivor  should,  with  the  consent  of  the  surviving  co-trustee  or  co- 
trustees^ nominate  and  appoint  a  new  trustee  or  trustees,  and  that  upon 
such  nomination  or  appointment  the  surviving  co-trustee  should  convey 
and  assign  the  trust  estates  in  such  manner  as  that  the  surviving  trustee 
and  trustees,  and  such  person  or  persons  so  to  be  nominated  and  ap- 
pointed, should  be  jointly  interested  in  the  said  trusts  in  the  same  man- 
ner as  such  surviving  trustee  and  the  person  so  dying  would  have  been 
in  case  he  were  living."  Both  the  trustees  died,  and  the  wife,  who  sur- 
vived her  husband,  executed  an  appointment  of  two  new  trustees  in  the 
place  of  the  deceased  trustees.  A  purchaser  took  the  objection,  that,  as 
the  proviso  clearly  contemplated  the  case  of  one  trustee  surviving,  an 
appointment  of  new  trustees  after  the  decease  of  both  the  original  trus- 
tees was  not  warranted  by  the  power.  The  purchaser  abandoned  the 
objection  at  the  hearing  without  argument — a  circumstance  much  to  be 
regretted,  as  a  judgment  from  Lord  Eldon  would  have  thrown  great  light 
upon  the  subject.  However,  the  case  as  it  stands,  has  been  said  by  the 
lord  chancellor  of  Ireland  to  be  of  great  authority,  viz.,  in  favour  of 
the  validity  of  the  appointment.  («) 

In  another  case,  where  two  trustees  had  been  appointed  by  the  settle- 
ment, and  the  power  was,  that  "  if  either  of  the  trustees  should  die,  or 
reside  beyond  seas,  or  become  incapable  or  unjfit  to  act  in  the  trusts,  it 
should  be  lawful  for  the  tenants  for  life,  together  with  the  surviving  or 
co7itinuing  or  acting  trustee  for  the  time  being,  to  nominate  a  new  trus- 
tee, and  that  the  trust  estate  should  thereupon  be  vested  in  the  newly  ap- 
pointed trustee,  jointly  ivith  the  surviving  or  continuing  trustee,"  upon 
the  trusts  of  the  settlement;  and  one  trustee  died  and  the  other  became 
bankrupt;  on  the  suggestion  by  counsel  that  there  was  no  surviving  or 
continuing  trustee,  and  therefore  the  power  was  gone,  the  lord  chancel- 
lor of  Ireland  observed,  ''That  happens  in  many  cases  without  the  power 
beina:  *aifected.     The  construction  is  not  so  straitlaced  as  all  r-^-^,-, 

that.^'(^^)  .  ^''^^ 

It  was  ruled  in  the  same  case,  that  a  trustee  who  became  bankrupt  was 
"  unfit"  within  the  words  of  the  power.  But  if  the  power  be  worded 
"  in  case  the  trustee  shall  become  incapable  to  act,"  without  the  addition 
of  the  words  ''or  unfit,"  a  bankrupt  trustee  is  not  within  the  description, 
for  by  "incapable"  is  meant  personal  incapacity  and  not  pecuniary  em- 
barrassment, (w)  If  a  power  of  appointing  new  trustees  be  given  to  a 
surviving  trustee,  and  he  goes  abroad  for  permanent  residence,  he  may 
be  removed  from  the  office  as  not  in  a  situation  to  discharge  the  duties 
properly,  but  if  not  removed  he  may  execute  the  power  of  appointing  a 
new  trustee,  though,  of  course,  he  must  do  so  in  this  as  in  every  other 
case,  with  impartiality  as  regards  the  interests  of  the  cestuis  que  trust.(xj 

(t)  1  Ves.  547.  (u)  lu  re  Roche,  1  Coiia.  &  Laws.  308. 

(y)  In  re  Roche,  1  Conn.  &  Laws.  30G;   2  Drur.  &  War.  287. 
(w)  Re  Wutts's  Settlement,  9  Hare,  106  ;  Turner  v.  Maule,  15  Jur.  VGl. 
(x)  O'Reilly  v.  Alderson,  8  Hare,  101. 


474       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

The  court  held  in  one  case  that  a  trustee  who  went  to  reside  perma- 
nently abroad,  came  within  the  description  of  a  trustee  ^^  incapable  to 
act,'  [y)  but  this  seems  scarcely  in  harmony  with  correct  principle,  resi- 
dence abroad  being  rather  a  question  of  unfitness  than  incapacity,  and 
it  cannot  be  reconciled  with  another  decision.  (2) 

If  there  be  two  trustees  of  a  settlement,  and  both  be  anxious  to  retire 
from  the  trust  at  one  and  the  same  time,  they  would  not  be  justified  in 
putting  the  property  under  the  control  of  a  single  trustee  appointed  in 
their  joint  places. («) 

And,  vice  versa,  a  single  trustee  should  he  wish  to  retire,  cannot, 
unless  expressly  authorized  by  the  power,  appoint  more  than  a  single 
trustee  in  his  place;  for  though,  in  the  substitution  of  more  trustees  than 
one,  he  would  be  chargeable  rather  with  too  much  than  too  little  caution, 
yet,  he  ought  not  to  clog  the  estate  with  any  unnecessary  machinery. 
The  idea  of  the  settlor  may  have  been,  that  by  increasing  the  number  of 
the  trustees  the  vigilance  of  each,  individually,  would  be  diminished. 
r*'7f^n  ''A  great  number/'  observed  Lord  ^Mansfield,  in  a  case  where 
L  -I  justices  had  appointed  five  overseers  instead  of  four,  "  may  not 
do  business  better  than  a  smaller,  and  it  would  be  attended  with  more 
expense. "(6) 

In  a  late  case,  a  testator  appointed  two  trustees,  and  directed  "  that  if 
the  trustees  thereby  appointed  or  to  be  appointed,  as  thereinafter  men- 
tioned, should  die,  &c.,  it  should  be  lawful  for  the  surviving  or  continuing 
trustee  or  trustees  for  the  time  being,  or  the  executors  or  administrators 
of  the  last  surviving  or  continuing  trustee,  to  appoint  one  or  more  per- 
son or  persons  to  be  a  trustee  or  trustees  in  the  room  of  the  trustee  or 
trustees  so  dying,  &c.,  and  thereupon  the  trust  estates  should  be  vested 
in  the  new  trustee  or  trustees,  jointly  with  the  surviving  or  continuing 
trustee  or  trustees,  or  solely,  as  occasion  should  require."  The  surviving 
trustee  appointed  tioo  trustees  in  the  room  of  the  deceased  trustee,  and 
the  vice-chancellor  expressed  his  opinion  that  such  a  case  was  immedi- 
ately contemplated  by  the  proviso. (c) 

In  another  case,  where  the  proviso  was  in  the  common  form,  and  on 
the  death  of  all  three  trustees,  the  donee  of  the  power  appointed  four 
new  trustees,  the  court  held  that  such  appointment  could  not  be  support- 
ed. One  of  the  four  trustees  so  appointed  declined  to  act,  but  this 
circumstance  did  not  vary  the  legal  question. (tZ) 

Where  however  the  court  itself  is  appointing  new  trustees  it  does  not 
at  the  present  day,  though  doubts  appear  to  have  been  formerly  felt  on 
the  poiut,(c)  consider  itself  bound  to  fill  up  only  the  precise  number 
mentioned  in  the  instrument  of  trust.  It  has  appointed  three  trus- 
tees where  the  testator  originally  appointed  two  only,(/)  two  where  the 

(y)  Mennard  v.  Welford,  1  Sm.  &  Gif.  426. 

(z)  Withington  v.  Withington,  16  Sim.  104. 

(a)  Hulme  v.  Hulme,  2  M.  &  K.  682.  (6)  Rex  v.  Lexdale,  1  Burr.  448. 

(c)  D'Almaine  v.  Anderson,  V.  C.  Feb.  1,  1841,  MS. 

{d)  Ex  parte  Davis,  2  Y.  &  C.  Ch.  Ca.  468 ;  S.  C.  3  Mont.  D.  &  De  G.  304. 

(e)  Devey  v.  Peace,  Taml.  78. 

(/)  Birch  v.  Cropper,  2  De  Gex  &  Sm.  255. 


HOW    A    TRUSTEE    MAY    OBTAIN    HIS    DISCHARGE.    475 

testator  originally  appointed  one,(^)  four  where  he  originally  appointed 
three. (/i) 

In  another  case,  there  were  originally  two  trustees  only,  and  the 
settlement  declared  that  "  in  case  the  said  A.  B.  and  C.  D.  or  any  of 
them  or  any  new  trustee  or  trustees  to  be  appointed  under  that  provision, 
in  their  or  either  of  their  places  should  depart  this  life,  &c.,  it  should  be 
lawful  (in  the  event  therein  ^mentioned)  for  the  acting  trustee  ^^.^^^-. 
or  trustees  for  the  time  being,  or  the  last  acting  trustee  or  the  L  J 
executors  or  administrators  of  the  last  acting  trustee  to  nominate  any 
person  or  jjersons  to  supply  the  place  of  the  trustee  or  trustees  respective- 
ly so  dying,  &c.,  and  that  immediately  after  such  appointment  the  trust 
estate,  &c.,  should  be  conveyed,  assigned,  and  transferred,  so  and  in  such 
manner  as  the  same  might  vest  in  such  new  trustee  or  trustees  jointli/, 
with  the  surviving  or  continuing  trustee  or  trustees,  or  solely  as  the  case 
might  require,  and  in  his,  her  or  their  executors,  administrators,  or 
assigns,  upon  the  trusts  thereinbefore  mentioned,  and  that  every  new 
trustee  should  have  and  might  exercise  the  same  powers  and  privileges 
whatsoever  as  if  be  had  been  appointed  a  trustee  by  those  presents,  and 
as  if  his  name  had  been  inserted  in  those  presents  instead  of  the  name 
of  the  trustee  or  trustees,  in  or  to  whose  place  such  new  trustee  or 
trustees  respectively  should  come  or  succeed;"  and  a  power  of  re- 
imbursement was  given  "  to  any  one  or  more  of  the  trustees,"  and 
also  ''  to  allow  to  his  and  their  co-trustee  or  co-trustees,"  the  expenses 
which  he  or  they  might  incur ;  and  the  two  trustees  retired,  and  three 
trustees  were  appointed  in  their  place,  and  Vice-Chancellor  Knight 
Bruce  observed,  "  Generally,  it  is  true  that  there  ought  to  be  an  adher- 
ence to  the  original  number  of  trustees  where  new  trustees  are  substituted. 
This  is  conformable  to  the  presumed  intention  of  the  parties,  where 
nothing  to  the  contrary  appears,  though  in  the  abstract  it  may  be  difficult 
to  suggest  much  inconvenience  from  appointing  three  trustees  to  act  in 
the  place  of  two  who  are  dead.  If,  however,  the  instrument  is  so  worded 
as  to  authorize  an  appointment  of  three  trustees  to  succeed  two,  of  course 
such  an  intention  appearing  must  have  effect  given  to  it,"  and  his  honor, 
considering  that  the  instrument  contained  expressions  which  could  not 
be  interpreted  consistently  with  the  notion  that  two  trustees  only  could 
be  substituted,  held  the  appointment  to  be  valid,  (i) 

In  general  the  new  trustees  should  be  persons  amenable  to  the  juris- 
diction of  the  court,  but  where  the  personal  property  of  a  lady  was 
settled  on  her  marriage  with  a  foreigner,  whose  ^domicile  was  in  r^c-y-i 
America  at  the  time  of  the  marriage,  the  subsequent  appointment  L  J 
of  three  Americans  to  be  trustees  was  decided  to  be  justifiable. (/.•)  But 
though  the  parties  who  have  a  power  of  appointment  may  exercise  it  in 
this  way,  the  court  in  substituting  trustees  by  its  own  jurisdiction  has 
refused  to  appoint  new  trustees  who  are  out  of  the  jurisdiction. (/) 

Should  one  of  two  trustees  be  desirous  of  retiring,  of  course  he  cannot 
do  so  without  the  substitution  of  another  in  his  place,(m)  and  the  power 

(ff)  Plenty  v.  West,  16  Bear.  356.  (/')  lb. 

(i)  Meiucrtzhagen  v.  Davis,  1  Coll.  335.  {^)  lb. 

(l)  Guibert's  Trust,  10  Jur.  852.  (m)  Adams  v.  Payuter,  1  Coll.  532. 


476  LEW  IN    ON    THE    LAW    OF    TRUSTS,    ETC. 

of  appointmeut  of  new  trustees  would  not  authorize  tlie  appointment  of 
the  continuing  trustee  as  sole  administrator  of  the  trust ;(«)  for  this 
would,  in  effect,  amount  to  a  relinquishment  of  the  trust  without  the 
appointment  of  any  successor.(o) 

A  surviving  trustee  cannot  be  advised,  (though  it  has  been  sometimes 
done,)  to  vest  the  trust  estate  in  himself,  and  a  new  trustee  appointed 
in  the  place  of  one  of  several  deceased  trustees,  but  should  refuse  to  part 
with  the  property  unless  the  original  number  of  trustees  be  restored. 
Still  less  could  the  representative  of  the  last  surviving  trustee  be  advised 
to  vest  the  property  in  a  single  new  trustee  nominated  in  the  place  of 
one  only  of  the  deceased  trustees.  And  where  a  settlement  appoints 
three  trustees  for  sale,  with  a  power  of  appointment  of  new  trustees  in 
the  usual  form,  and  two  die,  and  the  survivor  retires  in  favour  of  a  single 
new  trustee  appointed  in  his  place,  it  is  conceived  that  as  the  original 
settlement  constituted  three  trustees  to  execute  the  trust,  the  donee  of 
the  power  ought  not  to  have  executed  the  power  partially,  but  to  have 
restored  the  original  number,  and  in  such  a  case  a  purchaser  would  object 
to  the  title  on  a  sale  by  the  new  trustee. (p)  The  strongest  ground  for 
supporting  the  sale  would  be,  thaL  probably  many  titles  depend  on  the 
validity  of  such  an  execution  of  the  power,  and  in  a  similar  case  where 
forty-three  years  had  elapsed  since  the  exercise  of  the  power,  the  ap- 
pointment was  supported. (5') 

_g^  *If  A.  and  B.  be  trustees,  and  A.  dies,  and  then  B.  retires  and 
L  -I  appoints  C.  a  trustee  in  his  oion  place,  and  afterwards  the  donee 
of  the  power  for  the  time  being  appoints  C.  and  D.  in  the  place  of  A. 
and  B.  the  two  new  trustees  are  properly  appointed  and  can  sign  receipts  ; 
for  cither  the  original  appointment  of  C.  was  good,  and  the  subsequent 
appointment  of  D.  filled  up  the  number,  or  the  original  appointment  of 
C.  was  invalid,  and  then  the  appointment  of  both  C.  and  D.  by  the  donee 
of  the  power  was  effectual. (r) 

It  sometimes  happens  where  the  power  of  appointment  of  new  trustees 
is  limited  to  the  ^^  surviving  or  coji^mwiny  trustee,"  that  one  trustee 
dies,  and  then  the  other  wishing  to  retire  proposes  to  appoint  two  new 
trustees  at  the  same  time  in  the  place  of  himself  and  the  deceased  trus- 
tee. But  the  practice  of  the  pi'ofession  is  understood  to  be  not  to  consi- 
der such  an  appointment  valid  within  the  words  of  the  power.  The 
surviving  trustee  ought  first  to  appoint  a  person  in  the  room  of  the 
deceased  trustee,  and  then  the  persons©  substituted  may,  ?k&ih.e continuing 
trustee,  appoint  a  new  trustee  in  the  place  of  the  trustee  desirous  of  retiring. 

So  if  there  be  two  trustees,  and  a  power  of  appointing  new  trustees 
be  given  to  "  the  surviving  or  continuing  trustees  or  trustee,"  they 
cannot  both  retire  at  the  same  time,  but  there  must  be  two  separate 
appointments. (s) 

(n)  Wilkinson  v.  Parry,  4  Russ.  272. 

(0)  Attoraey-General  v.  Pearson,  3  Mer.  412,  per  Lord  Eldon.  • 

[p)  See  Earl  of  Lonsdale  v.  Beckett,  4  De  Gex  &  Sm.  73. 

{q)  Re  Pool  Bathursl's  Estate,  2  Sm.  &  Gif.  169;  and  see  In  re  Fagg's  Trust. 
19  L.  J.  175 ;  Nicholson  v.  Smith,  3  Jur.  N.  S.  313. 

(r)  Miller  v.  Priddon,  1  De  Gex,  Mac.  &  Gor.  335. 

[s]  Stones  v.  Rowton,  17  Beav.  303  ;  Nicholson  v.  Smith,  26  L.  J.  N.  S.  (Ch.) 
312;  3  Jur.  N.  S.  313. 


nOV\-    A    TRUSTEE    MAY    OBTAIN    HIS    DISCHAllGE.    477 

But  where  four  trustees  were  appointed  originally,  and  the  power  was 
to  the  surviving  or  continuing  or  otlicr  trustee  to  appoint,  it  was  held 
that  the  survivor  of  the  four  trustees  who  desired  himself  to  be  dis- 
charged, could,  by  force  of  the  words  "  other  trustee'^  appoint  four  new 
trustees  in  the  place  of  himself  and  the  three  others. (<) 

Where  persons  are  nominated  as  trustees  in  a  will,  and  a  power  of 
appointing  new  trustees  is  given  to  the  "  acting"  trustees,  should  all 
the  trustees  disclaim,  the  power  of  appointment  is  gone,  and  the  hiatus 
in  the  trust  can  only  be  filled  up  by  the  court.  It  has,  occasionally, 
been  suggested  that  the  trustees,  instead  of  disclaiming,  should  accept 
the  trust  to  the  *extent  of  exercising  the  power  only,  and  should,  r^.^>rf^-\ 
by  virtue  of  it,  appoint  new  trustees ;  but  it  is  conceived  that  L  J 
trustees  who  availed  themselves  of  the  office  for  the  purpose  only  of 
introducing  other  parties  into  the  trust  would  be  rather  '<  refusing"  than 
"  acting"  trustees,  and  the  exercise  of  the  power,  under  such  circumstan- 
ces, would  be  fraudulent  and  nugatory,  and  might  involve  the  outgoing 
trustees  in  serious  liabilities. 

On  a  change  of  trustees  it  is  not  uncommonly  proposed  to  appoint  one 
of  the  cestuis  que  trust  to  that  office,  but  such  an  arrangement  is  evi- 
dently irregular,  as  each  cestui  que  trust  has  a  right  to  insist  that  the 
administration  of  the  property  should  be  confided  to  the  care  of  some 
third  person  whose  interest  would  not  tend  to  bias  him  from  the  line  of 
his  duty.  Should  a  bill  be  filed  for  the  removal  of  the  cestui  que  trust, 
and  the  substitution  of  some  indiff'erent  person  as  trustee,  the  costs  would 
probably  be  thrown  upon  the  parties  who  had  improperly  filled  up  the 
trust.fw)  But  it  is  presumed  that  this  rule  affects  the  parties  to  the 
trust  only,  and  that  if  a  cestui  que  trust  who  has  been  appointed  trustee 
sell  real  estate  under  a  power  of  sale,  he  may  sign  a  receipt,  and  that  the 
purchaser  is  not  bound  to  look  to  the  proper  exercise  of  the  discretion  in 
such  a  case.  Cestuis  que  trust  are  not  absolutely  incapacitated  from 
being  trustees,  as  the  court  under  special  circumstances  appoints  a  catui 
que  trust  a  trustee. (v)  The  question  is  merely  one  of  relative  fitness. 
A  fortiori,  \hQ  circumstance  of  near  relationship  to  the  cestui  que  trust 
creates  no  absolute  disqualification  for  the  office  of  trustee,  though  the 
present  master  of  the  rolls  objects  to  appoint  relatives  to  be  trustees. (u-) 

Where  estates  of  a  diflerent  description,  or  held  under  a  difi'erent  title, 
or  limited  upon  difi'erent  trusts,  have  been  vested  in  the  same  trustees  by 
the  settlor,  and  there  is  a  single  power  of  appointment  of  new  trustees  in 
the  usual  form,  it  is  conceived  there  is  no  authority  for  afterwards  divid- 
ing the  trust  by  the  appointment  of  one  set  of  new  trustees  to  execute 
the  trusts  of  *the  one  estate,  and  a  distinct  set  of  new  trustees  to  r*cc.A-| 
execute  the  trusts  of  the  other,  (.r)  L         J 

The  proviso  is  sometimes  of  such  a  directory  character  as  to  authorize 
the  appointment  of  new  trustees  upon  one  event,  without  the  intention  of 
confining  the  exercise  of  the  power  to  the  occurrence  of  that  event  exclu- 

(()  Lord  Camoj's  v.  Rest,  19  Beav.  414. 

(m)  See  Passinghatu  v.  Sherborne,  9  Beav.  424. 

(i-)  Ex  parte  Clutton,  1  7  Jur.  988.  (w)  Wilding  v.  Bolder,  21  Beav.  222. 

(x)  See  Cole  v.  Wade,  16  Ves.  27;  In  re  Anderson,  I  Lloyd  &  Goold.  27. 

March,  1858.— 31 


478 


LEWIN  OX  THE  LAW  OF  TRUSTS,  ETC. 


sively.  Thus,  wtere  six  trustees  were  empowered,  ichen  reduced  to  three, 
to  fill  up  the  number,  and  all  died  but  one,  it  was  held  competent  to  the 
sui-vivor  to  execute  the  appointment.(?/)  So,  where  the  original  number 
of  trustees  was  twenty-five,  and  they  were  directed,  tchen  rediiced  to  fifteen, 
to  proceed  to  nominate  others,  it  was  determined  that,  when  seventeen  re- 
mained, the  survivors  viiglit  elect,  but  when  reduced  to  only  fifteen  they 
were  compellahle  to  elect. (z)  It  should  be  observed  that  these  were  cases 
of  charitable  trusts,  in  which  a  degree  of  latitude  is  allowed. 

If  a  tenant  for  life  has  a  power  of  appointing  new  trustees  and  sells 
his  life  interest,  it  seems  the  power  is  gone,  for  it  is  unreasonable  that  he 
should  nominate  a  trustee  to  the  prejudice  of  the  person  to  whom  he  has 
aliened  the  beneficial  interest.  If  he  has  only  mortgaged  his  life  interest 
he  may  not  be  able  to  appoint  a  trustee  behind  the  back  of  the  mortgagee, 
but  there  can  be  no  objection  to  such  an  exercise  of  the  power,  if  it  be 
done  with  the  consent  of  the  mortgagee. 

Advantage  cannot  be  taken  of  the  power  for  the  purposes  of  fraud ; 
and  therefore  if  a  trustee  refuse,  when  solicited  to  commit  a  breach  of 
duty  himself,  but  declare  his  willingness  to  resign  in  favour  of  some  other 
person  less  scrupulous,  the  court,  acting  upon  the  principle  of  qui  facit 
per  alium  facit  per  se,  would  hold  the  trustee  who  retires  responsible  for 
the  misbehaviour  of  the  trustee  he  has  substituted,  (a)  And  upon  principle 
it  would  seem  that  a  bond  of  indemnity  given  to  the  retiring  trustee 
would  be  a  very  doubtful  security  against  the  consequences  of  the  act ; 
r*-oT-i  foJ^  the  bond  itself  if  found  *to  have  been  infected  with  fraud 
['^"■'■J  could  afl"ord  no  just  ground  of  action.(Z>)  However,  in  a  recent 
case,  it  was  held  by  the  Court  of  Exchequer  that  the  common  law  courts 
have  no  such  cognisance  of  breaches  of  trust  as  to  treat  a  bond  of  indem- 
nity against  an  act  amounting  in  equity  to  a  breach  of  trust  as  necessarily 
containing  anything  illegal. {c^ 

If  a  new  trustee  be  irregularly  appointed,  the  old  trustees  may  exercise 
the  powers  given  to  them  by  the  instrument  of  trust,  notwithstanding 
the  mere  ineffectual  attempt. ((Z)  But  if  a  trustee  retire  upon  the  appoint- 
ment of  a  new  trustee,  and  from  want  of  the  proper  formalities  being 
observed  the  appointment  be  not  legal,  the  old  trustee  cannot  lie  by  for 
a  long  interval  and  then  exercise  a  power  by  mere  concurrence  in  a  deed, 
without  having  bona  fide  exercised  his  own  judgment  and  discretion.  In 
Lancashire  v.  Lancashire(e)  A.  and  B.  were  trustees  of  a  will,  and  in 
1831,  A.  professed  to  appoint  C  in  the  place  of  B.,  but  the  appointment 
was  invalid.  In  1842,  a  deed  of  settlement  was  prepared,  by  which,  after 
reciting  a  doubt  whether  B.  had  been  discharged,  and  that  in  order  to 

[y)  Attorney-General  V.  Floyer,  2  Vern.  748  ;  and  see  Attorney-General  v.  Bishop 
of  Lichfield,  5  Ves.  825  ;  but  see  Foley  v.  Wontner,  2  Jac.  &  Walk.  245. 

(z)  Doe  V.  Roe,  1  Anst.  86. 

(a)  Norton  v.  Pritchard,  Reg.  Lib.  B.  1844,  T71:  Sugden  v.  Crossland,  3  Sm.  & 
Gif.  192, 

(6)  See  Shep.  Touch.  132,  371. 

(c)  Warwick  v.  Richardson,  10  Mees.  &  Wels.  284. 

(d)  Warburton  v.  Sandys,  14  Sim.  622;  Miller  v.  Priddon,  1  De  Gex,  Mac.  & 
Gor.  335. 

(e)  2  PhiU.  657 ;  1  De  G.  k  Sm.  288. 


HOW    A    TRUSTEE    MAY    OBTAIN    HIS    DISCHARGE.    479 

obviate  sucli  doubt,  B.  had  concurred  in  tlie  propriety  of  the  settlement; 
A.,  B.,  and  C,  in  pursuance  of  a  power  contained  in  the  will,  conveyed 
the  trust  estate  upon  certain  trusts  within  the  purview  of  the  power. 
B.,  who  since  1831  had  taken  no  part  in  the  trust,  at  first  refused  to 
execute  the  deed,  but  afterwards  complied  upon  an  indemnity.  Lord 
Cottenham  held  that  the  concurrence  of  B.  in  the  deed  was  not,  under 
the  circumstances,  an  execution  of  the  power,  for  B.  had  withdrawn  from 
the  trust  in  fact,  and  C  had  not  been  duly  substituted ;  and  that  the 
mere  formal  execution  of  a  deed  by  B.  with  an  indemnity,  was  not  such 
an  exercise  of  discretion  as  the  will  had  contemplated.  We  may  observe, 
that  if  B.,  on  ascertaining  that  the  substitution  of  C.  was  nugatory,  had 
actively  resumed  his  duties,  and  hona  fide  exercised  the  power,  his  lord- 
ship's decision  would  no  doubt  have  been  different. 

If  the  administration  of  the  trust  be  in  the  hands  of  the  *court,  r^^-n^-. 
the  donee  of  the  power  cannot  exercise  it  without  having  first  L  "'-' 
obtained  the  court's  approbation  of  the  person  proposed. (/)  However, 
if  the  old  trustees  do  appoint  without  the  leave  of  the  court,  the  act  is 
not  to  be  considered  as  altogether  void  in  itself,  but  it  puts  the  burden 
upon  them  of  proving,  and  that  by  the  strictest  evidence,  that  what  was 
done  was  perfectly  right ;  and  also  saddles  them  with  the  costs  of  that 
proof.  If  the  act  was  not  proper,  of  course  the  appointment  cannot 
stand.  ((7) 

On  the  appointment  of  a  new  trustee  under  a  power,  the  costs  fall 
properly  on  the  corpus  of  the  trust  estate,  for  the  benefit  enures  not  onl}- 
to  the  tenant  for  life,  but  to  all  the  cestuis  que  trust.  This  rule  may  be 
deduced  from  the  practice  of  the  court,  for  on  the  appointment  of  new 
trustees  by  the  court,  the  costs  are  always  thrown  upon  the  estate. 
Where  there  is  no  available  fund  the  costs  are  often  paid  by  the  tenant 
for  life. 

III.  The  trustee  may,  as  a  general  rule,  although  the  contrary  appears 
to  have  been  at  one  time  supposed, (/<)  get  himself  discharged  from  the 
office  by  the  substitution  of  a  new  trustee  in  his  place  on  application  to 
the  court.  A  power  of  appointment  of  new  trustees  is  very  frequently 
omitted  in  settlements,  and  were  there  no  means  by  which  a  trustee  could 
ever  denude  himself  of  that  character,  it  would  operate  as  a  great  dis- 
couragement to  mankind  to  undertake  so  arduous  a  task. 

Where  no  new  trustee  can  be  found  willing  to  act,  the  trustee's  right 
to  be  discharged  must  depend  upon  the  circumstances  of  the  case.  "  It 
is  a  mistake,"  observed  Lord  St.  Leonards,  "  to  suppose  that  a  trustee 
who  is  entitled  to  be  discharged  is  bound  to  show  to  the  court  that  another 
person  is  ready  to  accept  the  office  ]  the  court  will  at  once  refer  it  r:j:CQq-i 
to  the  *master  to  appoint  a  new  trustee.     But  if  no  one  can  be  L         J 

(/)  "Webb  V.  Earl  of  Shaftesbury,  7  Ves.  480;  Attorney-General  v.  Clack,  1 
Beav.  467;  Peatfield  v.  Benn,  17  Beav.  522  ;  Middleton  v.  Reay,  7  Hare,  106;  Ken- 
nedy v.  Turnley,  6  Jr.  Eq.  Rep.  399 ;  Palmer's  Settlement,  cor.  Vice-Chancellor 
Kin'dersley,  April  18,  1857,  costs  of  appointing  new  trustees  ordered  to  be  paid 
out  of  the  corpus. 

(g)  Attorney-General  v.  Clack,  1  Beav.  473,  per  Lord  Langdale  ;  and  see  Cafe 
v.  Bent,  3  Hare,  249. 

{h)  Hamilton  v.  Fry,  2  Moll.  458. 


480 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC, 


found  who  will  accept  the  trust,  the  court  may  find  itself  obliged  to  keep 
the  old  trustee  before  the  court,  but  will  take  care  to  protect  him  in  the 
meantime."^  This  was  said  in  a  case  where  the  trustee,  from  the  con- 
duct of  the  cestui  que  trust,  could  claim  to  be  discharged,  but  if  a  trustee 
wish  to  retire  from  mere  caprice,  it  is  not  clear  that  the  court  can  or  will 
discharge  him,  unless  another  trustee  can  be  found  in  his  place. (/c)  It 
is  certain  that  the  court  cannot  divest  him  of  the  estate  before  some  one 
can  be  found  to  take  it,  and  even  as  to  the  office  it  is  not  unreasonable, 
that  if  a  man  once  engages  to  undertake  it,  he  shall  not  afterwards  retire 
from  it  without  any  reason,  and  so  leave  the  estate  without  a  trustee. 
But  every  trustee  may,  of  course,  escape  from  the  liabilities  of  the  office 
by  submitting  the  administration  of  the  trusts  to  the  jurisdiction  of  the 
court. (Z) 

The  application  to  the  court  to  be  discharged  from  the  trust  should  in 
general  be  made  by  bill  or  claim,  in  order  to  give  the  court  an  opportu- 
nity of  examining  into  the  merits  of  the  case  •,[m)  but  if  a  suit  be  already 
pending,  the  trustee  may  then  solicit  his  dismissal  by  petition  or 
motion. (/A  It  was  formerly  not  the  custom  of  the  court  to  look  through 
the  proceedings,  but  a  reference  was  ordered  to  the  master. (o)  Under 
the  present  practice  the  court,  except  in  cases  of  special  difficulty,  usu- 
ally appoints  a  trustee  without  a  reference  to  chambers. 

The  costs  where  the  trustee  retires  from  caprice  or  without  sufficient 
reason  must  be  borne  by  himself  ;(p)  but  where  he  retires  from  neces- 
sity, or  on  good  and  sufficient  ground,  they  will  be  thrown  upon  the 
trust  estate,  (g-) 

*«If,"  said  Lord  Langdale,  "a  trustee  undertakes  the  per- 
L  "^^  J  formance  of  a  trust,  he  is  not  entitled,  as  against  the  estate  he 
has  undertaken  to  protect,  to  exercise  a  mere  caprice,  and  without  any 
assignable  reason  say  that  he  will  no  longer  continue  a  trustee.  On  the 
other  hand,  if  the  trustee  finds  the  trust-estate  involved  in  intricate  and 
complicated  questions,  which  were  not  and  could  not  have  been  in  con- 
templation at  the  time  when  the  trust  was  undertaken,  he  has,  in  conse- 
quence of  that  change  of  circumstances,  a  right  to  come  to  the  court  to 
be  relieved;  and  the  court  will  judge  whether  the  circumstances  were 
such  as  to  make  it  fair  for  him  to  decline  acting  longer  upon  his  own 
responsibility  ;"(/•)  and  to  the  same  eff"ect,  the  present  master  of  the  rolls 
observed,  "It  is  quite  clear  that  any  circumstances  arising  in  the  adminis- 
tration of  the  trust,  which  have  altered  the  nature  of  his  duties,  justify 

(i)  Courtenay  v.  Courtenay,  3  Jones  &  Lat.  533,  per  Lord  St.  Leonards;  and  see 
Forshaw  v.  Higginson,  20  Beav.  487. 

(k)  Ardill  v.  Savage,  1  Ir.  Eq.  Rep.  T9. 

(Z)  See  Forshaw  v.  Higginson,  20  Beav.  485. 

{m)  See  Ex  parte  Anderson,  5  Ves.243  ;  In  re  Fitzgerald,  Lloyd  &  Goold.  22  ;  In 
re  Anderson,  Id.  29. 

(n)  V.  Osborne,  6  Yes.  455  ;  v.  Robarts,  1  J.  &  W.  251. 

(o)  v.  Osborne,  ubi  supra. 

(p)  Howard  v.  Rhodes,  1  Keen.  581 ;  Porter  v.  Watts,  16  Jur.  157  ;  Hamilton 
V.  Fry,  2  Moll.  458. 

{q)  Greenwood  v.  "Wakeford,  1  Beav.  581 ;  Forshaw  v.  Higginson,  20  Beav.  486; 
Courtenay  v.  Courtenay,  3  Jones  &  Lat.  529;  Gardiner  v.  Downes,  22  Beav.  395. 

(r)  Greenwood  v.  Wakeford,  1  Beav.  581. 


OF  THE  ESTATE  OF  THE  CESTUI  QUE  TRUST.   481 

a  trustee  in  leaving  it,  and  entitle  him  to  receive  his  costs ;  but  the  cir- 
cumstances must  be  such  as  arise  out  of  the  administration  of  the  trust, 
and  not  those  relating  to  himself  individuallj."(s) 

A  distinction  was  taken  by  Lord  Langdale  between  the  case  where 
the  same  person  who  accepted  the  trust  comes  to  be  relieved  from  it,  in 
whom  it  would  be  caprice  to  relinquish  the  trust  without  any  sufficient 
reason,  and  the  case  where,  on  that  person's  death,  the  trust  devolves  on 
his  representative  by  operation  of  law,  and  that  representative  applies  to 
the  court. (<) 

In  a  case,  where  the  settlement  contained  a  power  of  appointment  of 
new  trustees,  and  the  tenant  for  life  having  incumbered  his  life-estate 
with  annuities  and  other  charges,  the  original  trustees  were  desirous  of 
relieving  themselves  from  the  difficulties  of  their  situation  by  retiring 
from  the  trust,  and  the  tenant  for  life  who  was  the  donee  of  the  power 
could  not  find  any  person  to  undertake  the  trust,  the  costs  of  the  suit 
which  the  trustees  had  instituted  for  their  discharge  were  thrown  exclu- 
sively upon  the  fund  of  the  tenant  for  life.{yj 


*CHAPTEK    XXII.  [*585] 

IN  WHAT  THE  ESTATE  OF  THE  CESTUI  QUE   TRUST  PRIMARILY  CONSISTS. 

Having  concluded  the  subject  of  the  estate  and  office  of  the  trustee, 
it  follows  next  that  we  investigate  the  nature  and  properties  of  the  estate 
of  the  cestui  que  trust;  and  in  the  present  chapter  we  shall  inquire  in 
what  the  estate  of  the  cestui  que  trust  primarily  consists,  1.  In  the  simple 
trust;  and  2.  In  the  special  trust. 

SECTION  I. 

OF   THE   CESTUI'S    QUE   TRUST   ESTATE   IN    THE    SIMPLE   TRUST. 

In  the  simple  trust  the  equitable  ownership  is  compounded  of  the 
pernancy  of  the  profits  and  the  disposition  of  the  estate — t\\QJus  hahendi 
andjMs  disponendi.{v^ 

1.  The  equitable  owner  is  entitled  to  the  pernancy  of  the  profits. 

Thus  in  a  trust  of  lands  the  cestui  que  trust  may  compel  the  trustee  to 
put  him  in  possession  of  the  estate  ;(w)  and  if  the  cestui  que  trust  be 
ejected  from  the  possession  by  the  trustee,  the  cestid  que  trust  may 

(s)  Forshaw  v.  Higginson,  20  Beav.  486. 

(t)  1  Beav.  582  ;  and  see  Aldridge  v.  Westbrooke,  4  Beav.  212. 
{u)  Coventry  v.  Coventry,  1  Keen,  "758. 
(v)  Smith  V.  Wheeler,  1  Mod.  17,  per  Pemberton  J. 

(«•)  Brown  v.  How,  Barn.  354;  Attorney-General  v.  Lord  Gore,  Id.  150,  per  Lord 
Hardwicke. 


482  LEWIN    ON    THE    LAAV    OF    TKUSTS,    ETC. 

compel  the  trustee  to  account  not  only  for  the  rents  actually  received, 
but  for  the  amount  reserved,  and  which  but  for  accidental  deficiencies 
ought  to  have  been  paid.(x)  At  the  same  time  it  must  be  borne  in 
mind  that  the  possession  of  the  cestui  que  trust  is  regarded  at  law  as  the 
r*f;ftn  *possession  of  the  trustee,  to  whom  he  is  tenant  at  will,  and  in 
L  -I  whom  the  legal  "seisin  still  continues. (?/)  But  the  tenancy  of  the 
cestui  que  trust  is  not  determined  until  the  trustee  has  demanded  posses- 
ston.{z\ 

The  rule  which  gives  the  cestui  que  trust  the  possession  is  only  appli- 
cable to  the  simple  trust  in  the  strict  sense,  for  where  the  cestui  que 
trust  is  not  exclusively  interested,  but  other  parties  have  also  a  claim,  it 
rests  in  the  discretion  of  the  court  whether  the  actual  possession  shall 
remain  with  the  cestui  que  trust  or  the  trustee,  and  if  possession  be  given 
to  the  cestui  que  trust,  whether  he  shall  not  hold  it  under  certain  con- 
ditions and  restrictions. 

Thus,  in  Blake  v.  Bunbury,(rt)  a  testator  devised  all  his  real  estate  to 
trustees  in  fee,  upon  trust  to  convey  the  same  for  a  term  of  500  years 
(the  trusts  of  which  were  to  raise  certain  annuities  and  sums  in  gross,) 
and  subject  thereto  to  the  use  of  A.  for  life  with  remainders  over.  A. 
filed  a  bill,  praying  to  be  let  into  possession.  At  the  hearing  of  the 
cause  a  general  account  was  directed  of  the  testator's  estates  and  of  the 
charges  upon  them,  and  the  plaintiff  further  desired  that  he  might  be 
let  into  immediate  possession ;  but  Lord  Thurlow  said,  "  It  is  impossible 
for  me  to  let  him  into  possession  till  I  have  the  accounts  before  me,  and 
even  till  the  trusts  are  executed,  unless,  as.  he  now  offers,  he  pays  into 
court  a  sum  sufficient  to  answer  all  the  purposes  of  the  trust.  The  court, 
perhaps,  has  let  tenant  for  life  into  possession,  where  it  has  seen  that  the 
best  way  of  performing  the  trusts  would  be  by  letting  him  into  possession, 
as  where  an  annuity  of  100/.  a  year  is  charged  upon  an  estate  of  5000/.  a 
year;  but  till  the  account  is  taken  I  do  not  know  but  the  purposes  of 
the  trust  may  take  up  the  whole  and  if  I  was  to  do  it  now,  perhaps  I 
should  only  have  to  resume  the  estate."  The  accounts  were  afterwards 
taken^  and  the  plaintiff  was  let  into  possession  on  giving  security  to  the 
amount  of  10,000/.  to  abide  the  order  of  the  court  as  to  the  annuities 
and  other  incumbrances. (6) 

p:}:-Q~-]  *In  the  case  of  Tidd  v.  Lister(c)  a  testator  devised  and 
L  -I  bequeathed  all  his  real  and  personal  estate  to  trustees  upon  trust 
to  pay  his  funeral  expenses  and  debts,  to  keep  the  buildings  upon  the 
estate  insured  against  fire,  to  satisfy  the  premiums  upon  two  policies  of 
insurance  on  the  lives  of  his  two  sons,  to  allow  his  said  sons  an  annuity 
of  sixty  guineas  each,  and  subject  thereto  upon  trust  for  his  daughter 
for  life,  with  remainders  over ;  and  the  personal  estate  having  sufficed  to 
discharge  the  funeral  expenses,  debts,  and  annuities,  the  daughter,  who 
was  then  a,  feme  covert,  filed  a  bill  praying  to  be  let  into  possession  upon 

(z)  Kaye  v.  Powel,  1  Yes.  Jun.  408. 

(y)  Parker  v.  Carter,  4  Hare,  400 ;  Garrard  v.  Tuck,  8  Com.  Bench  Re.  231 ; 
Melling  v.  Leak,  1  Jur.  N.  S.  759. 

(2)  Doev.  Phillips,  10  Q.  B.  Rep.  130. 

(«)  1  Ves.  jun.  194.     See  the  case  more  fully  stated,  lb.  514,  4  B.  C.  C.  21. 

(6)  S.  C.  4  B.  C.  C.  28.  (c)  5  Mad.  429. 


OF  THE  ESTATE  OF  THE  CESTUI  QUE  TRUST.   483 

securing  the  amount  of  the  premiums  of  the  policies  :  but  Sir  J.  Leach 
said,  "  It  is  perfectly  plain  from  the  continuing  nature  of  this  trust,  that 
the  testator  intended  the  actual  possession  of  the  trust  property  should 
remain  with  the  trustees;  and  it  did  appear  to  me  a  singular  proposition, 
that  if  a  testator,  who  gives  in  the  first  instance  a  beneficial  interest  for  life 
only,  thinks  fit  to  place  the  direction  of  the  property  in  other  hands, 
which  is  an  obvious  means  of  securing  the  provident  management  of  that 
property  for  the  advantage  of  those  who  are  to  take  in  succession,  it 
should  be  a  principle  in  a  court  of  equity  to  disappoint  that  intention, 
and  to  deliver  over  the  estate  to  the  cestui  que  trust  for  life,  unprotected 
against  that  bias  which  he  must  naturally  have  to  prefer  his  own  interest 
to  the  fair  right  of  those  who  are  to  take  in  remainder.  Independently 
of  the  purpose  of  management  of  the  property,  a  testator  may  be  con- 
sidered in  the  case  of  a  female  cestui  que  trust  for  life  as  having  a  fur- 
ther view  to  her  personal  protection  in  the  case  of  her  marriage.  There 
may  be  cases  in  which  it  may  be  plain  from  the  expressions  in  the  icill, 
that  the  testator  did  not  intend  the  property  should  remain  under  the 
personal  management  of  the  trustees.  There  may  be  cases  in  which  it 
may  be  plain  from  the  nature  of  the  projjerty,  that  the  testator  could 
not  mean  to  exclude  the  cestui  que  trtcst  for  life  from  the  personal  possession 
of  the  property,  as  in  the  case  of  a  family  residence.  There  may  be  very 
special  cases  in  which  this  court  would  deliver  the  possession  of  the  pro- 
perty to  the  cestui  que  trust  for  life  although  the  testator's  ^inten-  ^^-^^^^ 
tion  appeared  to  he  that  it  should  remain  with  the  trustees  ;  as,  L  1 

where  the  personal  occupation  of  the  trust  property  was  beneficial  to  the 
cestui  que  trust,  there  the  court,  by  taking  means  to  secure  the  due  protec- 
tion of  the  property  for  the  benefit  of  those  in  remainder,  would  in  sub- 
stance be  performing  the  trust  according  to  the  intention  of  the  testator." 
And  his  honor  refused  the  application. 

In  Jenkins  v.  Milford(fA  A.  granted  certain  annuities  to  B.  with 
powers  of  distress  and  entry,  and  demised  an  estate  for  200  years  to  C. 
upon  trust,  to  permit  A.  to  receive  the  rents  until  the  annuities  should 
be  in  arrear  forty  days,  and,  when  in  arrear  for  that  period,  out  of  the 
rents,  issues,  and  profits,  or  by  demising,  assigning,  or  otherwise  dis- 
posing of  the  term,  or  by  bringing  actions  against  the  tenants,  or  by 
such  other  means  as  should  seem  meet,  to  raise  the  arrears  of  the  annui- 
ties, and  to  pay  the  surplus,  if  any,  to  the  grantor.  The  annuities  fell 
in  arrear,  and  the  trustee  gave  notice  to  the  tenants  to  pay  the  rents  to 
himself,  and  appointed  a  receiver,  to  whom  the  rents  were  afterwards 
paid.  A.  discharged  the  arrears  of  the  annuities,  and  then  applied  to 
the  trustee  to  deliver  up  the  possession,  which  was  refused.  The  point 
was  submitted  to  the  judgment  of  the  court,  and  Lord  Eldon  said,  "  If 
you  look  to  the  powers  of  distress  and  entry,  you  will  not  find  in  either 
of  them  that  any  thing  is  said  respecting  the  grantor's  being  permitted 
to  receive  the  rents,  or  what  is  to  be  done  with  the  surplus.  The  first 
trust  of  the  term  is  to  permit  the  grantor  to  receive  the  rents,  but  that  is 
difi"erent  from  a  trust  allowing  him  to  continue  in  possession.    Under  this 

{d)  1  J.  &  W.  C29. 


484       LEWIN  ON  THE  LAW  OF  TKUSTS,  ETC. 

deed,  though  the  trustee  has  the  legal  estate,  he  has  no  right  to  the  use 
of  it,  until  default  has  been  made  in  payment  of  the  annuities  for  forty 
days ;  but  then  he  becomes  a  trustee  both  for  the  grantor  and  the  gran- 
tee— for  the  latter  to  raise  the  arrears,  and,  to  do  that,  he  is  entitled  to 
take  the  rents.  If  he  takes  more  rents  than  are  sufficient  to  satisfy  the 
arrears,  he  is  bound  to  pay  the  surplus  to  the  grantor ;  if  he  receives 
enough  for  that  purpose,  he  is  bound  to  permit  and  suffer  the  grantor  of 
the  annuities  to  receive  the  remainder ;  and  it  is  a  very  different  thing 
r*^QQT  ^^^  *the  grantor  to  have  that  species  of  possession,  and  one  which 
L  J  cannot  be  disturbed  'without  another  ejectment  being  brought. 
In  this  ease,  therefore,  I  must  either  appoint  a  receiver,  or  compel  the 
trustee  so  to  authorize  the  grantor  to  receive  the  rents  and  profits,  that 
he  shall  have  the  full  benefit  of  them,  short  of  obliging  the  trustee  to 
bring  an  ejectment  to  remove  him.  An  undertaking  on  the  part  of  the 
grantor  to  deliver  up  possession  when  the  annuities  are  in  arrear  for 
forty  days  is  not  sufficient,  for  the  court  may  not  be  able  to  carry  that 
into  execution  ;  as,  for  instance,  in  the  case  of  the  grantor's  going  out 
of  the  jurisdiction.  If  the  grantor  is  made  to  receive  the  rents  m  the 
name  of  the  trustee,  it  will  not  signify  what  becomes  of  the  grantor,  as 
the  trustee  may  in  that  case  receive  them  as  well  as  he."  And  on  a 
subsequent  day  his  lordship  observed,  "  The  grantor  must  receive  the 
rents  so  as  to  preserve  the  possession  of  the  trustee  under  the  term.  The 
rents  must  be  received  by  him  as  the  agent  of  the  trustee,  and  the 
receipts  must  be  given  in  his  name."  And  the  order  was  that  the  trus- 
tee should  permit  the  grantor  to  receive  the  rents  until  the  further  order 
of  the  court ;  but  such  rents  were  to  be  received  by  the  grantor  in  the 
name  of  the  trustee,  and  the  receipts  for  the  same  were  to  be  given 
accordingly  ;  and  the  grantor  was  to  be  at  liberty  to  use  the  name  of  the 
trustee  in  making  and  supporting  distresses  for  rent,  the  grantor  indem- 
nifying the  trustee  from  all  costs  and  damages. 

In  Baylies  v.  Baylies(i"]  the  testator  devised  his  freehold,  copyhold, 
and  leasehold  estates  to  two  trustees,  upon  trust,  to  let  and  set  the  same, 
and  receive  the  rents,  issues,  and  profits  thereof,  and  thereout  to  pay  the 
expenses  of  renewals  and  repairs,  and  other  outgoings ;  and  subject 
thereto,  to  pay  the  rents,  issues,  and  profits  to  the  testator's  widow,  for 
her  life,  for  her  sole  and  separate  use,  without  power  of  anticipation. 
The  trustees  had  improperly  made  an  agreement  for  a  lease,  and  the 
widow  filed  a  bill  to  have  the  lease  set  aside,  and  that  the  plaintiff  might 
be  admitted  tenant  upon  giving  security  for  repairs  and  renewals,  &c., 
r*590"l  ^^^  ^^^  ^  receiver.  The  lease  *was  set  aside,  and  the  court  con- 
L  J  sidered  that  the  plaintiff,  upon  giving  security  for  the  due  per- 
formance of  the  objects  of  the  will,  ought  not  to  be  disturbed  in  the  pos- 
session, and  for  that  purpose  it  was  referred  to  the  master  to  appoint  a 
receiver  without  salary,  and  if  the  master  should  approve  of  a  person 
proposed  by  the  plaintiff,  such  person  was  to  be  appointed  in  preference, 
and  possession  delivered  to  him,  and  the  plaintiff  was  to  give  security 
for  the  payment  of  the  costs  of  renewals,  repairs,  and  other  outgoings, 

(e)  1  Coll.  537;  and  see  Denton  v.  Denton.  7  Beav.  388  ;  Pugh  v.  Vaiighan,  12 
Beav.  517.  ^  "       ' 


OF  THE  ESTATE  OF  TUE  CESTUI  QUE  TRUST.   485 

until  her  death,  or  further  order;  and  the  receiver  was  to  give  the  plain- 
tiff the  option  of  being  tenant,  reserving  to  the  receiver  a  power  of 
inspecting  the  estate  and  condition  of  the  property. 

In  another  case,  a  feme  covert  was  entitled  to  her  separate  use  for  her 
life,  and  it  was  not  thought  incompatible  with  the  nature  of  such  an 
estate  that  she  should  be  put  in  possession,  though  the  claim  was  opposed 
by  the  trustees. (/) 

The  cestui' s  que  trust  right  to  the  possession  is  recognised,  we  must 
remember,  in  a  court  of  equity  only ;  for  in  a  court  of  law  the  cestui 
que  trust  is  merely  tenant  at  will.(^)  The  doctrines  advanced  by  Lord 
Mansfield  in  the  last  century  have  been  long  since  overruled.  It  was 
maintained  in  his  day,  that  a  cestui  que  trust,  a  plaintiff  in  ejectment, 
could  not  be  nonsuited  by  a  term  outstanding  in  his  trustee  ;(/(")  and  that 
a  trustee,  a  plaintiff  in  ejectment,  could  not  recover  against  his  own  ces- 
tui que  trust. (i\  It  was  even  decided,  that,  where  a  term  had  been 
created  for  securing  an  annuity,  and  subject  thereto  upon  trust  to  attend 
the  inheritance,  the  tenant  of  the  freehold  was  entitled  to  recover  the 
possession  (provided  he  claimed  subject  to  the  charge,)  notwithstanding 
the  legal  term  was  outstanding  in  a  trustee  upon  trusts  that  were  still 
unsatisfied. (^•)  Such  at  least  were  the  doctrines  in  cases  oi clear  trusts: 
for  where  the  equity  was  at  all  doubtful,  the  rights  *of  the  par-  |-^.„-^ 
ties  were  even  then  referred  to  the  proper  tribunal. (?)  L         J 

"  Lord  Mansfield,"  as  was  observed  on  one  occasion  by  Lord  Redes- 
dale,  "had  on  his  mind  prejudices  derived  from  his  familiarity  with  the 
Scotch  law,  where  law  and  equity  are  administered  in  the  same  courts, 
and  where  the  distinction  between  them  which  subsists  with  us  is  not 
known,  and  there  are  many  things  in  his  decisions  which  show  that  his 
mind  had  received  a  tinge  on  that  subject  not  quite  consistent  with  the 
constitution  of  England  and  Ireland  in  the  administration  of  justice. "(m) 

The  law  has  accordingly  since  retired  into  its  regular  channel,  and  at 
the  present  day  we  may  regard  it  as  established  : — First,  that  a  cestui 
que  trust  cannot  recover  in  ejectment,(«)  unless  a  surrender  to  him  of  the 
legal  estate  can  be  reasonably  presumed,((>)  (which  of  course  cannot  be 
where  the  circumstance  of  the  outstanding  legal  estate  appears  on  the 

(/)  Horner  v.  Wheelwright,  2  Jur.  N.  S.  367. 

Iff)  Garrard  v.  Tuck,  8  Com.  B.  Re.  231 ;  Melling  v.  Leak,  1  Jur.  N.  S.  759 ;  and 
see  Geary  v.  Bearcroft,  0.  Bridge.  48G-490  ;  Bac.  Us.  5  ;  Doe  v.  Jones,  10  B.  &  Cr. 
718  ;  Doe  v.  M'Kaeg,  10  B.  &  Cr.  721. 

(h)  Lade  v.  Halford,  B.  N.  P.  110.  The  doctrine  is  said  to  have  originated  with 
Mr.  Justice  Gundy. 

(i)  Armstrong  V.  Peirse,  3  Burr.  1901. 

(/c)  Bristow  v.  Pegge,  1  T.  R.  758,  note  (a) ;  overruled  by  Doe  v.  Staple,  2  T. 
R.  684. 

(I)  Doe  V.  Pott,  Doug.  695,  per  Lord  Mansfield;  Goodright  v.  Wells,  Id.  747, 
jper  eundem. 

(to)  Shannon  v.  Bradstreet,  1  Sch.  &  Lef.  6Q. 

[n)  Doe  V.  Staple,  ubi  supra;  see  Barnes  v.  Crow,  4  B.  C.  C.  10  &  11 ;  Doc  v. 
Sybourn,  7  T.  R.  3 ;  Goodtitle  v.  Jones,  7  T.  R.  45,  and  folloAving  pages ;  Doe  v. 
Wroot,  5  East,  138. 

(o)  Doe  V.  Sybourn,  7  T.  R.  2  ;  see  Doe  v.  Staple,  2  T.  R.  GOG,  Goodtitle  v. 
Jones,  7  T.  R.  45,  and  following  pages:  Roe  v.  Reade,  8  T.  R.  122. 


486 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC, 


declaration  or  special  case,)(^j)  and  the  cestui  que  trust  has  no  alternative 
but  to  bring  his  action  in  the  name  of  the  trustee,  who  must  be  indem- 
nified against  the  costs  :{q)  Secondly,  that  the  trustee,  as  the  tenant  of 
the  legal  estate,  may  recover  in  ejectment  from  his  own  cestui  que  trust ;{r) 
and  the  cestui  que  trust  has  no  defence  to  the  action  at  law,  but  must 
have  recourse  to  an  injunction  in  equity. (s) 

The  title  deeds  of  an  estate  form  no  part  of  the  usufructuary  enjoy- 
ment ;  and  therefore  if  an  estate  be  vested  in  trustees  upon  strict  settle- 
ment,  and  the  deeds  be  delivered  into  their  ^possession,  thei/ 
L  ^^'"J  have  a  right  to  the  custody  of  them  for  the  benefit  of  all  parties 
interested.  (<)  Should  the  tenant  for  life  obtain  them  from  the  trustees, 
and  thereby  be  enabled  to  deal  with  the  estate  as  absolute  owner,  the 
trustees,  if  it  appeared  they  had  acted  fraudulently,  or  under  such  gross 
negligence  as  amounted  to  constructive  fraud,  would  be  held  personally 
responsible  for  the  consequences. (m)  In  case  the  title  deeds  had  come 
originally  into  the  hands  of  the  equitable  tenant  for  life,  it  is  conceived 
tha't  the  trustees,  as  the  owners  of  the  legal  freehold,  could  recover  them 
in  an  action  of  trover,  and  it  is  at  least  doubtful  whether  the  tenant  for 
life,  if  there  were  no  special  circumstances,  could  obtain  an  injunction 
to  restrain  it.(v) 

Upon  the  principle  that  the  cestui  que  trust  is  foro  conscientice  entitled 
to  the  pernancy  of  the  profits,  he  has  been  invested  by  the  express  lan- 
guage of  some  statutes,  and  by  the  equitable  construction  of  others, 
with  the  various  privileges  conferred  by  the  legislature  upon  the  legal 
tenants  of  real  estate. 

By  the  6th  Geo.  3,  c.  50,  s.  1,  "  Every  man  between  the  age  of  21 
and  60,  residing  in  any  county  in  England,  who  shall  have  in  his  own 
name  or  in  trust  for  lihn  within  the  same  county  10/.  by  the  year,  above 
reprises,  in  real  estate,"  &c.,  &c.,  is  qualified  to  serve  as  a  juror. 

The  election  of  a  coroner  is  a  right  vested  in  the  freeholders  of  the 
county;  and  upon  principle  the  privilege  of  voting  must,  it  is  conceived, 
have  belonged  originally  to  the  legal  freeholder.  However,  by  the  58th 
Geo.  3,  c.  95,  s.  2,  it  was  enacted  that  no  person  should  be  allowed  to 
have  any  vote  for  or  by  reason  of  any  trust  estate  or  mortgage  unless 
such  trustee  or  mortgagee  should  be  in  actual  possession  or  receipt  of 
the  rents  and  profits,  but  that  the  ccst^li  que  trust  or  mortgagor  in  posses- 
sion should  vote  for  the  same  estate.  It  is  somewhat  singular  that  upon 
r*;;qy-i  ^^^  re^Q2i\  of  the  58  Geo.  3,  c.  95,  *bythe  late  Coroners  Act,(2r) 
L  "^"^"^J  the  provision  referred  to  was  not  re-enacted,  and  although  it  is 

{p)  Goodtitle  v.  Jones,  '7  T.  R.  43  ;  see  Doe  v.  Staple,  2  T.  R.  696;  Roe  v.Reade, 
8  T.  R.  122. 

{q)  Aunesley  V.  Simeon,  4  Mad.  390;  and  see  Reade  v.  Sparkes,  1  Moll.  11; 
Jeukins  v.  Milford,  1  J.  &  W.  635  ;  Ex  parte  Little,  3  Moll.  67. 

(/•)  See  Roe  v.  Reade.  8  T.  R.  122,  123.  (s)  Shine  v.  Gough,  1  B.  &  B.  445. 

{t)  See  Duncombe  v.  Mayer,  8  Ves.  320.     [ii)  See  Evans  v.  Bicknell,  6  Ves.  174, 

{v)  See  Denton  v.  Denton,  7  Beav.  388.  Where  the  estates  are  legal,  the  person 
in  possession  of  the  deeds,  whether  tenant  for  life  or  remainderman,  may  hold 
them.  The  rule  is,  who  first  takes,  he  keeps.  Foster  v.  Crabb,  12  Com.  Ben.  Re. 
136. 

(w)  7  &  8  Vict.  c.  92.  Reference  to  this  statute  at  p.  269,  supra,  has  inadver- 
tently been  omitted. 


OF    THE    ESTATE    OF    THE    CESTUI    QUE    TRUST.        487 

laid  clown  in  a  text  book  of  high  legal  authority(a;)  that  tliere  can  he  no 
doubt  that  at  the  common  laio  an  equitable  estate  of  freeliold  confers  the 
■right  of  voting,  the  position  thus  asserted  is  not  only  opposed  to  princi- 
ple but  to  the  express  views  of  Lord  Chancellor  Northington,(?/)  and  in 
the  absence  of  any  more  recent  statutory  enactment  the  right  of  voting 
is,  it  is  conceived,  now  vested  in  the  trustee. 

By  the  Game  Act,  22  &  23  Car.  2,  c.  25,  s.  8,  persons  were  disquali- 
fied from  sporting  unless  they  had  lands  and  tenements,  &c.,  &c.,  of  the 
clear  value  of  100?.  per  annum;  and  it  was  decided  that  a  cestui  que 
trust  of  lands  to  that  amount  was  within  the  intention  of  the  act.  Lord 
Mansfield  observing,  that  "  the  privilege  was  given  to  property,  and  the 
cestui  que  trust  was  substantiaUy  the  owner,  and  the  trustee  only  nonii- 
nalJy."(z)  By  the  provisions  of  the  late  Game  Act  no  qualification  is 
now  necessary,  (o) 

By  the  6th  Vict.  c.  18,  s.  74,  "  no  trustee  of  lands  or  tenements  shall 
in  any  case  have  a  right  to  vote  in  any  such  election  {i.  e.,  for  a  member 
of  parliament,)  for  or  by  reason  of  any  trust  estate  therein,  but  the  cestui 
que  trust  in  actual  possession,  or  in  the  receipt  of  the  rents  and  profits 
thereof,  though  he  may  receive  the  same  through  the  hands  of  the  trus- 
tee, shall  and  may  vote  for  the  same  notwithstanding  such  trust."(i) 

Hitherto  we  have  spoken  of  the  cestid's  que  trust  right  to  the  profits 
and  privileges  proceeding  from  lands.  In  trusts  of  chattels  personal,  as 
where  heirlooms  are  vested  in  a  trustee  upon  trust  for  the  persons  suc- 
cessively entitled  under  the  limitations  of  a  strict  settlement,  the  cestui 
que  trust  for  the  time  being  is  equally  entitled  to  the  use  and  possession 
of  the  goods  during  the  continuance  of  his  interest;  and  upon  the  ground 
of  this  right  the  goods  are  not  forfeited  on  the  bankruptcy  *or  pKo^n 
insolvency  of  the  tenant  for  life,  though  left  in  the  possession  of  L  J 
the  bankrupt  or  insolvent  by  permission  of  the  legal  owner,  for  they  are 
left  with  him  according  to  the  title. (^c'j 

Where  the  chattels  are  mere  Jwusehold  goods,  it  seems  the  cestui  que 
trust  may  use  them  in  his  own  or  in  any  other  person's  house,  and  either 
alone  or  promiscuously  with  other  goods,  or  may  let  them  out  to  hire  ;(<:?) 
but,  where  the  chattels  are  heirlooms  annexed  to  a,  house,  and  their  con- 
tinuance in  the  mansion  is  evidently  a  constituent  part  of  the  trust,  they 
cannot  be  let  to  hire  but  together  with  the  house  itself  (e)  Of  course 
the  use  of  the  chattels  by  the  tenant  for  life  does  not  enable  him  to  pawn 
them  beyond  the  extent  of  his  own  interest. (/) 

Where  the  trust  fund  consists  of  stock,  the  cestui  que  trust  is  usually 
put  in  possession  of  the  dividends  by  a  power  of  attorney  from  the  trustee 
to  the  ccstui's  que  trust  bankers,  with  a  written  authority  from  the  trustee 
to  the  bankers  to  credit  the  cestui  que  trust  with  the  dividends  as  and 
when  received,  by  which  arrangement  the  trustee  is  spared  the  trouble 
of  repeated  personal  attendances  at  the  Bank  of  England,  and  the  entries 

(z)  Jervis  on  Coroners,  by  "Welsby,  2nd  Ed.  p.  24. 

(y)  Burgess  v.  Wheate,  1  Ed.  251. 

(z)  Wethercll  v.  Hall,  Cald.  230.  (a)  1  &  2  W.  4,  c.  32. 

(b)  See  the  statutory  changes  on  this  subject  traced,  pp.  270,  271,  supra. 

(c)  See  supra,  p.  277.  {d)  Marshall  v.  Blew,  2  Atk.  217. 
(e)  Cadogan  v.  Kennet,  Cowp.  432.                   (/)  Hoare  v.  Parker,  2  T.  R.  376. 


488  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

in  the  books  of  the  private  bankers  are  sufficient  evidence  of  the  receipt. 
In  cases  where  the  cestui  que  trust  is  tenant  for  life,  this  course  seems 
free  from  objection;  but  where  his  interest  is  one  which  may  determine 
in  his  life-time  some  risk  is  incurred  of  the  power  of  attorney  and  autho- 
rity being  acted  upon  by  the  bankers  after  the  determination  of  the 
cestui' s  que  trust  estate;  and  it  is  conceived  that  the  trustee  would  be 
liable  to  the  other  cestuis  que  trust  for  any  misappropriation  thus  taking 
place,  though  after  his  own  death.  Of  course  the  trustee  will  be  careful 
to  see  that  the  power  of  attorney  extends  only  to  the  receipt  of  the  divi- 
dends, and  not  to  the  sale  of  the  stock  itself;  otherwise,  if  the  bankers 
sell  out  the  stock  and  the  proceeds  be  misapplied,  the  trustee  will  of 
course  be  answerable. (^) 

|-^p.qr-i  *2.  The  cestui  que  trust  has  jus  disponencli,  that  is,  may  call 
■-  -I  upon  the  trustees  to  execute  conveyances  of  the  estate  as  the 
cestui  que  trust  directs.  (A)  If  the  trustee  refuse  to  comply,  and  the 
cestui  que  trust  file  a  bill  to  compel  him,  the  trustee  will  be  visited  with 
the  costs, (<)  unless  there  was  some  reasonable  ground  for  his  refusal,(A-) 
or  he  acted  bo7ia  fide  under  the  advice  of  counsel,(A  and  the  trustee  will 
have  to  pay  the  costs,  though  the  cestui  que  trust,  instead  of  filing  a  hill, 
might  have  enforced  a  conveyance  by  the  summary  process  of  a  pcti- 
tion.{in'^  But  a  trustee  has  a  right  to  be  satisfied  by  the  fullest  evidence 
that  the  party  requiring  the  conveyance  is  the  exclusive  cestui  que 
trust.(ii'^  Of  course  a  cestui  que  trust  cannot  call  for  the  conveyance  of 
a  larger  legal  estate  than  he  has  equitable :  thus  a  tenant  in  tail  of  the 
trust  cannot  call  for  a  conveyance  of  the  legal  fee  simple. (o)  And  Lord 
Eldon  was  of  opinion  that  a  cestui  que  trust  could  not  require  the  trustee 
to  divest  himself  from  time  to  time  of  different  parcels  of  the  trust  estate ; 
for  the  trustee  had  a  right  to  say,  "  If  you  mean  to  divest  me  of  my 
trust,  divest  me  of  it  altogether,  and  then  make  your  conveyances  as  you 
think  proper."(p)  And  a  trustee,  like  a  mortgagee,  cannot  be  called 
upon  to  convey  the  estate  by  any  other  words  or  description  than  that 
by  which  the  conveyance  was  made  to  himself.^j) 

r*5f)n  ^■^'^  ^  conveyance  by  trustees  the  word  "grant"  used' fre- 
L         -1  quently  to  be  omitted,  as  supposed,  though  erroneously,(r)  to 

(g)   See  Sadler  v.  Lee,  6  Beav.  324. 

(A)  Payne  v.  Barker,  Sir  0.  Bridgm.  Rep.  24. 

(i)  Jones  v.  Lewis,  1  Cox,  199;  Willis  v.  Hiscox,  4  M.  &  Cr.  197;  Tbornby  v. 
Yeats,  1  Y.  &  C.  Cb.  Ca.  438 ;  Penfold  v.  Boucber,  4  Hare,  271 ;  and  see  Campbell 
V.  Home,  1  Y.  &  C.  Cb.  Ca.  GG4. 

(k)  Goodson  v.  Ellisson,  3  Russ.  583  ;  Poole  v.  Pass,  1  Beav.  600. 

(l)  Angier  V.  Stannard,  3  M.  &  K.  56G  ;  and  see  Devey  v.  Tboruton,  9' Hare,  232  ; 
Field  V.  Donougbmore,  1  Dru.  &  War.  234. 

(to)  Watts  V.  Turner,  1  R.  &  M.  634.  (n)  Holford  v.  Pbipps,  3  Beav.  434. 

(o)  Saunders  v.  Neville,  2  Vern.  428.  But  though  this  point  may  have  been 
mooted  in  the  case  and  ruled  as  reported,  yet  the  question  in  the  cause  was  a 
different  one,  viz.,  whether  under  the  circumstances  the  plaintiff  was  entitled  to 
call  for  a  conveyance  of  the  legal  estate  even  to  him,  and  "the  heirs  of  his  body." 
See  note  by  Raithby,  correcting  the  text  from  the  Reg.  Book. 

(p)  Goodson  V.  Ellisson,  3  Russ.  594  ;  and  see  Smith  v.  Snow,  3  Mad.  10.  But 
if  the  cestuis  que  trust  of  a  fund  as  tenant  for  life  and  remainderman  assign  part  of 
the  fund  for  valuable  consideration,  it  is  conceived  that  the  trustee  cannot  refuse 
to  transfer  that  part  to  the  assignee.  (q)  Goodson  v.  Ellisson,  ubi  supra. 

(r)  Co.  Litt.  384  a  ;  the  Yorkshire  Registry  Acts,  however,  6  Anne,  c.  35,  and  8 


OF  THE  ESTATE  OF  THE  CESTUI  QUE  TRUST.   489 

contain  a  warranty ;  or  the  trustees  were  made  '^  by  way  of  conveyance, 
and  not  by  way  of  warranty,"  to  "  grant;"  or  the  conveyance  was  quali- 
fied by  the  insertion  of  the  words  "  according  to  their  estate  and  interest 
as  such  trustees."  All  doubt  on  the  subject  is  now  removed  by  the  4th 
section  of  the  8  &  9  Vict.  c.  106,  which  enacts  that  the  word  "  grant" 
shall  not  imply  any  covenant  in  law  except  so  far  as  the  same  may,  by 
force  of  any  act  of  parliament,  imply  a  covenant. 

A  trustee  to  bar  dower  is  or  is  not  called  upon  to  join  in  a  conveyance, 
according  to  the  circumstances  of  the  case.  The  rule  is  understood  to 
be,  that  where  a  power  of  appointment  is  exercised  besides  the  common 
law  conveyance,  his  joining  is  dispensed  with ;  but  where,  no  power 
being  exercised,  the  fee  cannot  be  passed  without  his  concurrence,  he 
is  made  a  party,  (s) 

In  general  there  are  no  intermediate  steps  of  the  equitable  interest,  so 
that  if  A.  be  trustee  for  B.,  who  is  trustee  for  C,  A.  holds  in  trust  for 
C,  and  must  convey  the  estate  as  C.  directs.(<)  But  if  any  special  con- 
fidence or  discretionary  power  be  reposed  in  B.,  which  imposes  the 
necessity  of  his  taking  the  legal  estate,  he  may  then  call  upon  the  ori- 
ginal trustee  to  execute  a  transfer  to  himself  (w) 

Where  trustees  hold  a  fund  upon  such  trusts  as  a  person  by  an  instru- 
ment to  be  executed  in  a  particular  manner  may  appoint,  they  must  be 
careful  in  transferring  it  to  the  appointees  to  see  that  all  the  formalities 
attending  the  power  have  been  duly  observed,  for  if  the  execution  of  it 
be  not  regular,  the  trustees,  except  in  those  cases  where  courts  of  equity 
aid  a  defective  execution,  will  be  personally  liable  for  the  fund  to  the 
parties  claiming  in  default  of  the  power,  (zj) 


^SECTION  11.  [*597] 

OP  THE  cestui' S  QUE  TRUST  ESTATE  IN  THE  SPECIAL  TRUST. 

This  may  be  said  to  be.  The  right  to  enforce  in  equity  the  specific 
execution  of  the  settlor's  intention  to  the  extent  of  that  cestui' s  que  trust 
particular  interest.  The  other  parties  entitled  may  express  a  desire  that 
the  trust  should  be  differently  administered ;  but  if  such  a  divergence 
from  the  donor's  will  would  prejudice  or  injuriously  affect  the  rights  of 
any  one  cestui  que  trust,  that  cestui  que  trust  may  compel  the  trustees 
to  adhere  strictly  and  literally  to  the  line  of  duty  prescribed  to  them.(»') 

If  there  be  only  one  cestui  que  trust,  or  there  be  several  cestuis  que 

G.  2,  c.  6,  give  the  force  of  covenants  for  title  to  the  Avords  "  grant,  bargain,  and 
sell." 

(s)  See  1  Su|r.  Pow.  245,  et  seq. 

{t)  Head  v.  Lord  Teynhara,  1  Cox,  57;  and  see \.  Walford,  4  Russ.  372. 

(m)  Wetherell  v.  Wilson,  1  Keen,  86 ;  Cooper  v.  Thornton,  3  B.  C.  C.  96,  180  ; 
Woods  V.  Woods,  1  M.  &  C.  409  ;  Angier  v.  Stannard,  3  M.  &  K.  571  ;  Onslow  v. 

Wallis,  10  Sim.  483,  1  Mac.  &  Gor.  506;  v.  Walford,  4  Russ.  372;  Pool  v. 

Sharp,  1  Beav.  600. 

{v)  Hopkins  v.  Myall,  2  R.  &  M.  86  ;  Cocker  v.  Quayle,  1  R.  &  M.  535  ;  Reid  v. 
Thompson,  2  Ir.  Ch.  Re.  26. 

(w)  See  Deeth  v.  Hale,  2  Moll.  317. 


490 


LEW IX    ON    THE    LAW    OF    TRUSTS,    ETC. 


trust  and  all  of  one  mind  (iu  eacli  case  sui  juris,)  the  specific  execution 
may  be  stayed,  and  the  special  trust  will  then  acquire  the  character  of  a 
simple  trust ;  for  whatever  modifications  of  the  estate  the  settlor  may 
have  contemplated,  through  whatever  channel  he  may  have  originally 
intended  his  bounty  to  flow,  the  cesfuis  que  trust,  as  the  persons  to  be 
eventually  benefited,  are  in  equity,  from  the  creation  of  the  trust,  and 
before  the  trustees  have  acted  in  the  execution  of  it,  the  absolute  bene- 
ficial proprietors.  Thus  if  a  fund  be  given  to  trustees  upon  trust  to 
accumulate  until  A.  attains  twenty-four,  and  then  to  transfer  the  gross 
amount  to  him,  A.  on  attaining  twenty-one  may,  as  the  party  exclusively 
interested,  call  for  the  immediate  payment.(a;)  So  if  a  legacy  be  be- 
queathed to  trustees  upon  trust  to  purchase  an  annuity,  the  intended 
annuitant,  if  sui  juris,  may  claim  the  legacy.(3/)  So  if  a  fund  be  vested 
in  trustees  in  trust  for  the  personal  support,  clothing,  and  maintenance 
of  A.,  an  adult,  A.  is  exclusively  entitled  to  the  benefit  *of  the 
L  J  fund,  and  if  he  take  the  benefit  of  the  Insolvent  Act  it  passes  to 
his  assignees  in  insolvency,  (ri) 

In  Pearson  v.  Lane,(a)  before  Sir  W.  Grant,  a  conveyance  had  been 
made  to  trustees  upon  trust  to  sell^  and  with  the  proceeds  to  purchase 
other  lands  to  be  settled  on  the  daughters  of  W.  J.  as  tenants  in  common 
in  tail,  with  remainder  to  them  in  fee.  The  daughters  levied  a  fine  of 
the  laiids  to  he  sold  to  the  uses  and  upon  the  trusts  of  their  respective 
marriage  settlements.  It  was  doubted  whether  the  entail  had  been 
effectually  barred ;  but  Sir  W.  Grant  said,  "  It  is  clear,  if  the  estate  had 
been  sold,  and  another  estate  purchased,  the  daughters  would  have  been 
tenants  in  tail,  with  immediate  remainders  to  themselves  in  fee.  It  is 
true  in  the  lands  to  be  sold  they  had  no  interest,  legal  or  equitable, 
expressly  limited  to  them  :  but  the  equitable  interest  in  those  lands  must 
have  resided  somewhere :  the  trustees  themselves  could  not  be  the  bene- 
ficial owners;  and  if  they  were  mere  trustees,  there  must  have  been  some 
cestuis  que  trust.  In  order  to  ascertain  wJio  they  are,  a  court  of  equity 
inquires  for  whose  benefit  the  trust  was  created,  and  determines  that 
those  who  are  the  objects  of  the  trust  have  the  interest  in  the  thing 
which  is  the  subject  of  it.  Where  money  is  given  to  be  laid  out  in 
land,  which  is  to  be  conveyed  to  A.,  though  there  is  no  gift  of  the 
money  to  him,  yet  in  equity  it  is  his,  and  he  may  elect  not  to  have  it 
laid  out :  so,  on  the  other  hand,  where  land  is  given  upon  trust  to  sell, 
and  pay  the  produce  to  A.,  though  no  interest  in  the  land  is  expressly 
given  to  him,  in  equity  he  is  the  owner,  and  the  trustee  must  convey  as 
he  shall  direct :  if  there  are  also  other  purposes  for  which  it  is  to  be  sold, 
still  he  is  entitled  to  the  surplus  of  the  price,  as  the  equitable  owner  sub- 
ject to  those  purposes ;  and  if  he  provides  for  them,  he  may  keep  the 
estate  unsold.  The  daughters  electing  to  keep  this  estate,  they  acquired 
the  fee,  and  it  was  discharged  of  every  trust  to  which  it  had  been  sub- 
ject." 

(z)  Josselyn  v.  Josselyn,  9  Sim.  63  ;  Saunders  v.  Vautier,  4  Beav.  115 ;  Cr.  & 
Ph.  240 ;  see  Curtis  v.  Lukin,  5  Beav.  147  ;  Rocke  v.  Rocke,  9  Beav.  66. 
(y)  Dawson  v.  Hearn,  1  R.  &  M.  606,  and  cases  there  cited, 
(z)  Younghusband  v.  Gisborue,  1  Coll.  400.  (a)  17  Ves.  101. 


PROPERTIES    OF    CESTUI'S    QUE    TRUST    ESTATE.    491 

But  until  the  cestui  que  trust,  or  the  joint  cestuis  que  trust,  counter- 
mand the  specific  execution,  the  special  trust  will  *proceed ;  as  r:(.rQQ-. 
if  lands  be  devised  to  trustees  upon  trust  to  sell,  and  pay  the  L  J 
proceeds  to  A.,  the  property  will  remain  personal  estate  in  A.  until  he 
discharge  the  character  impressed  upon  it  by  electing  to  take  it  as 
land.(6) 

As  an  incident  to  the  beneficial  enjoyment  of  his  interest  by  the  cestui 
que  trust,  he  has  a  right  to  call  upon  the  trustee  for  accurate  information 
as  to  the  state  of  the  trust. (cj  Thus  in  a  trust  for  sale  for  payment  of 
debts,  the  party  entitled,  subject  to  the  trust,  may  say  to  the  trustee,  what 
estates  have  you  sold  ?  what  is  the  amount  of  the  moneys  raised  ?  what 
debts  have  been  paid  ?  &c.((7)  It  is  therefore  the  boundeu  duty  of  the 
trustee  to  keep  clear  and  distinct  accounts  of  the  property  he  administers, 
and  he  exposes  himself  to  great  risks  by  the  omission. (e)  It  is  the  Jirst 
duty,  observed  Sir  T.  Plumer,  of  an  accounting  party,  whether  an  agent, 
a  trustee,  a  receiver,  or  an  executor  Tfor  in  this  respect  they  all  stand  in 
the  same  situation)  to  be  constantly  ready  with  his  accounts. (/^ 

A  legatee,  who  is  a  quasi  cestui  que  trust,  is  entitled  to  have  a  satisfactory 
explanation  of  the  state  of  the  testator's  assets,  and  an  inspection  of  the 
accounts,  but  not  to  require  a  copy  of  the  accounts  at  the  expense  of  the 
estate.  (^) 

When  it  is  said  that  each  cestui  que  trust  may  compel  the  specific  per- 
formance of  the  trust  to  the  extent  of  his  own  interest,  it  is  of  course 
understood  that  the  trust  is  of  such  a  lawful  description,  that  the  court 
will  not  on  grounds  of  public  policy,  refuse  to  recognise  its  existence. (/i) 


*CHAPTEE    XXIII.  [*600] 

PROPERTIES   OF   THE   CESTUI' S    QUE   TRUST   ESTATE. 

We  shall  next  enter  upon  the  properties  of  the  cestui' s  que  trust  estate 
as  affected  by  the  acts  of  the  cestui  que  trust,  or  by  operation  of  law. 

SECTION  I. 

OF   ASSIGNMENT. 

An  equitable  interest  may  be  assigned,  though  it  be  a  mere  possi- 

(b)  See  Walter  v.  Maunde,  19  Ves.  429. 

(c)  Walker  v.  Symonds,  3  Sw.  58,  per  Lord  Eldon  ;  Xewton  t.  Askew,  11  Beav. 
152  ;  Gray  v.  Haig,  20  Beav.  219 ;  Burrows  v.  Walls,  5  De  Gex,  M.  &  G.  253. 

(d)  Clare  v.  Ormond,  Jac.  120,  per  Lord  Eldon. 

(e)  Freeman  v.  Fairlie,  3  Mer.  43,  per  Lord  Eldon. 

(/)  Pearso  v.  Green,  1  J.  &  W.  140  ;  and  see  Hardwick  v.  Yernon,  14  Yes.  510  ; 
White  T.  Lincoln,  8  Ves.  363  ;  Turner  v.  Corney,  5  Beav.  515. 

(y)  Ottley  V.  Gilby,  8  Beav.  6o2.  (A)  See  supra,  ch.  vi. 


492 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


bility,(«)  and  either  with  or  without  the  intervention  of  the  trustee  3(&) 
and  tiie  assignee  of  the  cestui  que  trust  may  call  upon  the  trustee  to  con- 
vey to  him,  and  on  his  refusal  may  file  a  bill  to  compel  a  conveyance 
without  making  the  assignor  a  party.(f) 

Before  the  Statute  of  Frauds,(rZ)  the  transfer  might  have  been  made 
hj parol;  but  now,  by  the  ninth  section  of  that  act,  all  grants  and  assign- 
ments of  any  trust  or  confidence  are  required  to  be  in  icriting,  signed  hy 
the  party  granting  or  assigning  the  same,  or  else  are  declared  utterly 
void.  But  though  a  deed  be  not  absolutely  necessary,  it  is  the  practice, 
ex  maj'ori  cauteld  to  employ  the  same  species  of  instrument,  and  adopt 
the  same  form  of  words,  in  the  transfer  of  an  equitable  as  in  the  con- 
veyance of  a  legal  estate. 

*The  power  of  an  equitable  tenarit  in  tail  to  dispose  of  the  equi- 
L  J  table  fee  has  been  differently  modified  at  difi"erent  periods,  and 
some  account  of  the  fluctuation  of  the  law  in  this  respect  may  serve  to 
illustrate  the  general  principles  upon  which  trusts  have  been  administered. 

At  common  law  all  inheritable  estates  were  in  fee  simple,  and  it  was 
the  statute  de  donis{e)  that  first  gave  rise  to  entails  and  expectant  re- 
mainders. x\s  this  statute  was  long  prior  to  the  introduction  of  uses, 
had  equity  followed  the  analogy  of  the  common  laic  only,  a  trust  limited 
to  A.  and  the  heirs  of  his  body,  with  remainder  over,  had  been  construed 
a  fee  simple  conditional,  and  the  remainder  had  been  void;  but  the 
known  legal  estates  of  the  day,  whether  parcel  of  the  common  law  or  in- 
grafted by  statute,  were  copied  without  distinction  into  the  system  of 
trusts,  and,  equitable  entails  indisputably  existing,  the  question  in  con- 
stant dispute  was,  by  what  process  they  should  be  barred. 

In  legal  entails  the  only  modes  of  unfettering  the  estate  were  by  fine 
or  recovery.  A  fine  was  by  statutory  enactment  conclusive  on  all  privies, 
and  therefore  a  cestui  que  trust,  though  he  had  not  the  freehold,  could 
nevertheless  have  barred  his  issue,  who  were  his  privies  in  blood  and 
estate.  A  recovery  had  no  operation  unless  the  tenant  to  the  prcecipe 
was  seised  of  the  legal  freehold  in  possession,  and  as  the  cestui  que  trust  had 
merely  a  right,  and  not  a  freeliold,  it  followed  he  could  not  by  recovery 
bar  either  his  issue  or  the  remaindermen.  There  were  certainly  some 
doubts  upon  the  law  in  this  particular ;  but  such  was  the  conclusion 
drawn  from  the  conflicting  cases  by  Lord  Chief  Baron  Gilbert.  '<  If 
cestid  que  use,"  he  observes,  "  aliene  by  fine,  that  is  good,  and  bars  the 
entry  of  the  feofi"ees(/)  after  his  death  by  the  statute  4  H.  7 ;  but  if  he 

(a)  Courthope  v.  Heyman,  Cart.  25;  Warmstrey  v.  Tanfield,  1  Cli.  Re.  29; 
Goring  V.  Bickerstaff,  1  Ch.  Ca.  8  ;  Cornbury  v.  Middleton,  ib.  211,  per  Judges 
Wyld  and  Rainsford  ;  Burgess  v.  Wheate,  1  Ed.  195,  per  Sir  T.  Clarke;  21  Vin. 
Ab.  516,  pi.  1. 

(6)  Philips  V.  Brydges,  3  Ves.  127,  per  Lord  Alvanley. 

(c)  Goodson  v.  Ellisson,  3  Russ.  583. 

\d)  29  Car.  2,  c.  3.  And  by  the  8th  &  9th  Vict.  c.  106,  s.  3,  assignments  of 
chattel  interests  in  land  other  than  copyhold  are  void  at  law  unless  made  by  deed. 

(e)  13  E.  I,  St.  1,  c.  1. 

(/)  By  1  R.  3,  c.  1,  the  cestui  que  use  in  possession,  though  for  life  only,  had 
authority  to  pass  the  legal  fee ;  but  when  his  right  to  the  possession  had  deter- 
mioed,  the  feoffees  might  re-enter,  and  hold  to  the  uses  in  remainder. 


PROPERTIES    OF    CESTUI'S    QUE    TRUST    ESTATE.     493 

aliene  by  recoverjj  it  does  not  bind  the  issue,  because  be  is  not  tenant  to 
the  prcccipe."((/'\ 

The  statute  of  H.  8,  merged  the  use  in  the  possession,  and  p^i^pA.;,-, 
*when  the  trust  succeeded  to  the  use,  and  "appeared  in  its  like-  L  ^J 
ness,"  the  effect  of  a  fine  and  I'ecovery  was  now  to  be  settled  by  the  court 
ab  integro.  It  was  agreed,  as  before,  that  define,  concluding  allprt'vies, 
would  defeat  the  claim  of  the  issue  ;(A)  but,  the  cestui  que  frKS^  having  no 
seisin  of  the  freehold,  it  was  long  disputed  what  should  be  the  operation 
of  a  recovery.  Lord  Clarendon,  assisted  by  Sir  Harbottle  Grimston  and 
Justice  Windham,  held,  that  the  recovery  of  a  cestui  que  trust  should  bar 
and  transfer  the  trust,  as  it  should  an  estate  at  law,  if  it  were  uj^on  con- 
sideration, but  otherwise  Justice  Windham  doubted  of  it.(/')  But  this 
was  merely  a  resolution,  and  the  nest  year  an  opinion  was  expressed  by 
Lord  Keeper  Bridgman,  that  a  recovery  should  not  bar.(Z;)  The  point 
afterwards  came  before  the  lord  keeper  a  second  time,(/)  and  it  was  ad- 
mitted a  fine  would  bar  the  issue,  though  not  the  remainder  over,  but 
whether  anything  would  be  barred  by  the  cestui' s  que  trust  recovery  the 
court  doubted ;  for  "  if  tenant  in  tail  at  law  suffer  a  recovery,  legal  ex- 
ceptions might  be  taken  to  it,  but  if  a  recovery  might  be  suffered  in 
equity,  all  those  exceptions  would  be  taken  away."  It  was  contended  in 
the  same  case,  that  if  cestui's  que  trust  recovery  was  not  allowed  to  bar, 
there  would  result  a  perpetuity :  but  a  perpetuity  was  defined  to  be 
'< where,  if  all  who  had  interest  joined,  they  would  not  bar  or  pass  the 
estate  ;  but  if  by  the  concurrence  of  all  having  interest  the  estate  might 
be  barred,  it  was  no  perpetuity;"  and  as  cestui  que  trust  could  certainly 
estop  his  issue  by  fine,  it  was  plain  that  with  the  concurrence  of  the  re- 
mainderman the  estate  was  disposable  in  fee.  At  length,  Lord  Notting- 
ham, the  father  of  equity,  decided  that  a  recovery  should  bar  the  issue 
and  all  remainders  over,(??i)  "it  being,"  he  said,  "a  general  rule,  that 
any  legal  conveyance  or  assurance  by  a  cestui  que  trust  should  have  the 
same  effect  and  operation  upon  the  trust  as  it  should  have  had  upon  the 
estate  at  law  in  case  the  trustees  had  executed  their  trust :  otherwise  trustees, 
*by  refusing  or  not  being  capable  to  execute  their  trust,  might  p^pno-i 
hinder  the  tenant  in  tail  of  that  liberty  which  the  law  gave  him  L  -I 
to  dispose  of  his  estate,  which  would  be  manifestly  inconvenient,  and 
tend  to  the  introduction  of  perpetuities. "(jA  The  stream  now  flowed  in 
an  opposite  direction,  and  it  was  held  by  succeeding  chancellors,  (and 
Lord  Nottingham  himself  appears  to  have  countenanced  the  same  doc- 
trine,(o)  that  cestui  que  trust  might  bar  his  issue  and  the  remainders  over 
by  any  conveyance,  as  by  bargain  and  sale,  or  lease  and  release,(p)  or 

{g)  Gilb.  Uses,  32. 

\h)  Goodrick  v.  Brown,  1  Ch.  Ca.  49  ;  Washborn  v.  Downes,  lb.  213. 
\i)  Goodrick  v.  Brown,  1  Ch.  Ca.  49.       {k)  Digby  v.  Langworth,  1  Ch.  Ca.  68. 
\l)  Washborn  v.  Downes,  1  Ch.  Ca.  213. 

(m)  North  v.  Williams,  2  Ch.  Ca.  63  ;  North  v.  Champernoon,  lb.  T8. 
{n)   North  v.  Champernoon,  2  Ch.  Ca.  78. 
(0)  See  North  v.  Williams,  2  Ch.  Ca.  64;  S.  C.  1  Vern.  14. 
{p)  Carpenter  v.  Carpenter,  1  Vern.  440;  Beverley  v.  Beverley,  2  Vern.  131  ; 
Bowater  v.  Elly,  lb.  344 ;  and  see  Legate  v.  Sewell,  1  P.  W.  91. 

March,  1858.— 32 


494       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

even  by  agreemeDt,(5)  or  will.(r)  As  a  trust  was  not  witliin  the  statute 
de  donis,  there  could  in  strictness  be  no  entail  of  it,  and  therefore  it  was 
thought  that  equity,  which  regarded  the  Statute  of  Westminster  "  as  an 
ambitious  act  in  favour  of  the  lords  against  the  king/'(s)  and  viewed  the 
trust  as  its  own  creature,  and  to  be  governed  according  to  conscience, 
might  allow  the  quasi  tenant  in  tail  of  a  trust  to  bar  the  issue  and  re- 
mainders over  by  any  expression  of  intention. (1)  At  length  *one 
L  J  consistent  principle  was  established  by  Lord  Hardwicke,  that  as 
entails  with  expectant  remainders  had  gained  a  footing  in  trust  by  ana- 
logy to  the  statute,  a  court  of  equity  was  bound  to  follow  the  analogy 
throughout,  and  therefore  a  tenant  in  tail  of  a  trust  ought  not  to  be  at 
liberty  to  bar  his  issue  and  the  remaindermen  except  by  a  conveyance 
which  would  have  barred  them  had  the  entail  been  of  the  legal  estate. 

The  doctrines  of  equity,  as  finally  settled  upon  this  principle,  may  be 
summed  up  as  follows  : — 

1.  For  a  good  equitable  recover!/  there  must  have  been  an  equitable 
tenant  to  the  prcccipe,  that  is,  the  owner  of  the  first  equitable  freehold 
must  necessarily  have  concurred. (<) 

2.  An  equitable  recovery  was  a  bar  to  equitable  only,  and  not  to  legal 
remainders.(«) 

3.  An  equitable  recovery  was  not  vitiated  by  the  circumstance  that 
the  equitahle  tenant  to  ih.Q  proicipe  had  also  the  legal  freehold. (i;) 

4.  An  equitable  remainder  was  well  barred,  though  it  was  vested  in 
a  person  who  had  also  the  legal  fee. (w^ 

At  the  present  day,  by  the  operation  of  the  fines  and  recoveries  act,(a:) 

{q)  See  Norcliff  v.  Worsley,  1  Ch.  Ca.  236. 

{r)  Woolnough  v.  Woolnough,  Pr.  Ch.  228 ;  Turner  v.  Gwinn,  1  Vern.  41. 

(s)  NorclifF  v.  Worslej,  1  Ch.  Ca.  236,  per  Lord  Nottingham. 

{t)  North  V.  Williams,  2  Ch.  Ca.  64,  per  Lord  Nottingham ;  Highway  v.  Banner, 
1  B.  C.  C.  586;  and  see  Wykham  v.  Wykham,  18  Ves.  418. 

(m)  Philips  V.  Brydges,  3  Ves.  128,  per  Lord  Alvanley ;  Salvin  v.  Thornton,  Amb. 
545-  S.  C.  1  B.  C.  C.  73,  note. 

{v)  Philips  V.  Brydges,  3  Vejs.  126,  per  Lord  Alvanley;  Marwood  v.  Turner,  3 
P.  W.  171 ;  Goodrick  v.  Brown,  2  Ch.  Ca.  49 ;  S.  C.  Freem.  180. 

[w)  Philips  V.  Brydges,  3  Ves.  120;  Robinson  v.  Comyns,  Rep.  t.  Talb.  164  ;  S. 
C.  1  Atk.  473. 

{x)  3  &  4  Will.  4,  c.  74. 

(I)  An  estate  pur  autre  vie  is  also  not  within  the  statute  de  donis,  and  the  quasi 
tenant  in  tail,  if  in  possession,  may  at  any  time  by  a  simple  conveyance,  dispose 
of  the  absolute  interest  as  against  the  issue,  and  the  remainderman,  and  may  even 
bind  them  in  equity  by  his  contract.  But  if  the  quasi  tenant  in  tail  be  in  remain- 
der after  a  prior  estate  under  the  same  settlement,  he  must  have  the  consent  of 
the  tenant  for  life  or  other  precedent  freeholder,  otherwise  though  he  may  bind 
his  issue,  he  cannot  destroy  the  remainders.  W^e  may  here  observe  that  if  lands 
pur^  autre  vie  be  limited  to  A.  and  the  heirs  of  his  body,  with  remainders  over,  the 
entirety  of  the  legal  estate  is  vested  in  A.  The  issue  and  remaindermen  stand  in 
the  light  of  mere  special  occupants,  that  is,  they  have  no  ixila  jure  suo  to  any  pre- 
sent interest,  but  merely  take  the  estate  by  devolution  where  the  owner  has  made 
no  disposition.  A  limitation  pur  autre  vie  has  been  commonly  referred  to  the 
nature  of  a  fee  conditional :  but  the  principles  of  the  two  estates  are  not  to  be 
confounded.  The  tenant  of  a  fee  conditional  can  only  aliene  after  issue  born,  but 
tenant  ^wr  a^itre  vie  may  dispose  absolutely  as  above  without  reference  to  the  fact 
of  there  being  issue  or  not.  See  the  whole  law  upon  this  subject  collected  by 
Lord  St.  Leonards  in  Allen  v.  Allen,  1  Conn,  and  Laws.  428. 


PROPERTIES    OF    CESTUI'S    QUE    TRUST    ESTATE.     495 

the  equitable  tenant  in  tail  may  dispose  of  the  equitable  fee  by  the  same 
modes  of  assurance,  and  with  the  same  formalities,  as  if  he  were  tenant 
in  tail  of  the  legal  estate. 

To  proceed  with  the  subject  of  assignment  of  equitable  interests — the 
purchaser,  in  the  transfer  of  an  equity,  must,  for  his  security,  never  dis- 
pense with  the  two  following  precautions.  First,  he  must  make  inqui- 
ries of  the  trustee  whether  the  equity  of  the  vendor  has  been  subjected 
to  any  prior  incumbrance  ;  for  if  the  trustee  be  guilty  of  misrepresentation, 
or  even  of  mis-statement  from  forgetfulness,  the  ^purchaser  may  i-*rnrn 
charge  him  personally  with  the  amount  of  the  consequent  loss.(_y)  L  J 
Secondly,  upon  the  execution  of  the  conveyance,  the  purchaser  should 
give  notice  of  his  own  equitable  title  to  the  trustee,  by  which  means  he 
will  gain  precedence  of  all  prior  incumbrancers  who  have  not  been 
equally  diligent,  and  will  prevent  his  own  postponement  to  subsequent 
incumbrancers  more  diligent  than  himself;  and  of  course  the  trustee 
will  be  personally  responsible,  if,  after  such  notice,  he  part  with  the  fund 
to  any  person  not  having  a  prior  claim. (s) 

That  a  purchaser's  notice  will  secure  to  him  this  advantage  of  priority, 
has  even  in  choses  in  action,  been  only  recently  settled.  In  Cooper  v. 
rynmore,(a)  Sir  T.  Plumer,  vice-chancellor,  decided  that  mere  neglect 
to  give  notice  would  not  postpone  an  incumbrancer,  but  that  such  laches 
ought  to  be  shown  as,  in  a  court  of  equity  would  amount  to  fraud  ;  but 
in  Dearie  v.  Hall,(i)  and  Loveridge  v.  Cooper,(c)  nine  years  after,  his 
honor,  when  master  of  the  rolls,  came  to  a  contrary  conclusion,  and 
delivered  a  very  elabox'ate  argument  that  notice  ivoulcl  gain  priority. 
His  honor's  judgments  were  affirmed  on  appeal, ((?j  and  the  doctrine  has 
been  recognized  in  several  subsequent  cases. (cA 

The  principles  upon  which  Sir  T.  Plumer  proceeded  were  these  : — 
That  "  although  the  cestui  que  trust  could  not  transfer  the  legal  interest, 
which  must  remain  with  the  executors,  yet,  wherever  it  was  intended  to 
complete  the  transfer  of  a  chose  in  action,  there  was  a  mode  of  dealing 
which  a  court  of  equity  considered  tantamount  to  possession,  viz.,  notice 
given  to  the  legal  depositary  of  the  fund.  By  such  notice  the  legal 
holder  was  converted  into  a  trustee  for  the  new  purchaser,  and  the  cestui 
que  trust  was  deprived  of  the  power  of  carrying  the  same  security  re- 
peatedly into  the  market.  This  precaution  was  always  taken  by  diligent 
incumbrancers,  and  if  it  was  not  taken,  there  was  neglect,  and  the 
solicitor  who  conducted  the  ^business  was  responsible  for  that  r:}:^^^-, 
neglect.  To  give  notice  was  a  matter  of  no  difficulty  ;  and  wherever  •-  -I 
persons  treating  for  a  c7io.se  in  action  did  not  give  notice  to  the  trustee 
or  executor,  they  did  not  perfect  their  title,  they  did  not  do  all  that  was 
necessary  to  make  the  thing  belong  to  them  in  preference  to  all  other 
persons,  and  they  became   responsible  in  some  respects  for  the  easily 

(y)  Burrowes  v.  Lock,  10  Ves.  470. 

\z)  Hodgson  V.  Hodgson,  2  Keen,  "704;  Roberts  v.  Lloyd,  2  Beav.  376;  Andrews 
V.  Buusfield,  10  Beav.  511. 

(a)  o  Russ.  60.  (i)  lb.  1.  (c)  3  Russ.  30.  {d)  lb.  38,  48. 

(e)  Huttou  V.  Sandys,  1  Younge,  602,  see  607 ;  Smith  v.  Smith,  2  Cr.  &  Mees. 
231 ;  Foster  v.  Blackstone,  1  M.  &  K.  297,  see  307. 


49G 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


forseen  consequences  of  their  negligence.(/)     It  was  objected  qm  ■prior 
est  tempore  potior  est  jure;  but  it  could  not  be  contended  that  priority 
in  time   must  decide  where  the  legal  estate  was  outstanding,  for  the 
maxim  as  an  equitable  rule  admitted  of  exceptions,  and  gave  way  when 
the  question  did  not  lie  between  bare  and  equal  equities.     If  there  ap- 
peared to  be,  in  respect  of  any  circumstance  independent  of  priority  of 
time,  a  better  title  in  the  puisne  purchaser  to  call  for  the  legal  estate 
than' in  the  purchaser  who  preceeded  him  in  date,  the  case  ceased  to  be 
a  balance  of  equities,  and  the  preference,  which  priority  of  time  might 
otherwise  have  given,  was  done  away  with  and  counteracted.(^)     What 
title  had  the  prior  incumbrancer  to  call  on  a  court  of  justice  to  interpose 
iu  his  behalf,  in  order  to  obviate  the  consequences  of  his  own  miscon- 
duct ?     He  had  omitted  to  perfect  his  security  :  a  third  party  had  inno- 
cently advanced  his  money,  and  had  perfected  his  security  as  far  as  the 
nature  of  the  subject  permitted,  and  was  that  court  to  interfere  to  post- 
pone him  to  the  other  ?     It  was  said  notice  did  not  form  part  of  the 
necessary  conveyance  of  an  equitable  interest.     If  a  person  meant  to  rely 
on  the  contract  of  the  individual,  there  was  certainly  no  need  of  notice, 
for  from  the  moment  of  the  contract  he  with  whom  the  party  was  dealing 
was  pjersonalhj  bound  ;  but  if  it  was  meant  to  go  farther,  and  attach  a 
right  upon  the  thing  itself  which  was  the  subject  of  the  contract,  it  was 
necessary  to  give  notice;  and  if  an  individual  who  contracted  with  ano- 
ther did  not  by  giving  notice  to  the  trustee  divest  the  vendor  or  mortga- 
gor of  the  possession, "but  permitted  him  to  remain  the  ostensible  owner 
as  before,  he  must  take  the  consequences  which  might  ensue  from  such 
a  mode  of  dealing."(/i) 

*In  the  case  of  clioses  in  action  these  principles  are  now  clearly 
[^'*507]  eg^-aiaiished,  and  the  doctrine  holds  even  against  the  assignees  of 
a  bankrupt  or  insolvent  neglecting  to  give  notice ;  as,  if  A.  be  entitled 
to  a  clwse  in  action  and  become  an  insolvent,  and  then  assign  it  to  a 
purchaser  for  valuable  consideration  without  notice  of  the  insolvency, 
who  serves  notice  on  the  trustee,  he  thus  gains  a  priority  over  the 
assignees  for  nothing  vests  in  the  assignees  but  what  the  insolvent  would 
have  passed  by  an  assignment,  and  if  they  neglect  to  complete  their  title 
by  notice  they  must  be  postponed  in  equity.  (?') 

But  between  clioses  in  action  and  real  estate  there  is  an  observable  dis- 
tinction. In  personal  estate  the  purchaser  knows  the  legal  title  is  out- 
standing in  a  third  person,  and  is  therefore  bound  to  give  notice  of  his 
incumbrance;  but  in  lands  it  often  happens  that  the  vendor  professes 
to  have  the  legal  ownership  in  himself,  whereas  it  afterwards  appears  it 
was  really  vested  in  some  stranger.  If  the  purchaser  be  not  cognizant 
of  the  outstanding  legal  estate,  he  cannot  give  notice  of  his  interest,  and 
therefore  cannot  be  held  to  have  forfeited  his  right  by  having  neglected 
a  precaution  that  was  impossible.     On  the  other  hand,  to  hold  that  the 

(/•)  SRuss.  12-14. 

{g)  See  observations  of  Vice-Chancellor  Kindersley  in  Rice  v.  Rice,  2  DreAvry, 
pp.  77,  78. 

{h)  3  Russ.  20-22. 

{i)  Re  Atkinson,  4  De  Gex  &  Sm.  548  :  2  De  Gex,  Mac.  &  Gor.  140, 


[*C08] 


PROPERTIES    OF    CESTUI'S    QUE    TRUST    ESTATE.     407 

doctrine  of  notice  does  not  apply  at  all  to  real  estate,  renders  any  deal- 
ings with  ec^uitable  interests  therein  extremely  dangerous.  Thus  A.  is 
entitled  to  an  equitable  interest,  of  which  the  legal  estate  is  in  B.  upon 
trusts  requiring  B.  to  retain  possession  of  the  title-deeds,  and  not  to  part 
with  the  legal  estate.  A.  conveys  his  interest  to  C,  who  makes  no 
inquiries  about  incumbrances,  and  gives  no  notice  to  the  trustee;  A. 
afterwards,  fraudulently  concealing  the  previous  assurance,  conveys  the 
same  interest  to  D.,  who  makes  inquiries  of  the  trustee  respecting  incum- 
brances, and  gives  him  notice  of  his  own  charge.  If,  notwithstanding 
these  precautions,  D.  should  be  postponed  to  C,  who  had  priority  in 
point  of  time,  it  is  clear  that  no  equitable  interest  can  ever  be  purchased 
with  safety.  In  Jones  v.  Jones(^)  the  point  was  not  involved  in  the 
decision,  but  the  vice-chancellor  of  England  assumed  that  the  principles 
of  Dearie  v.  Hall,  and  Loveridge  v.  Cooper,  "^^were  inapplicable 
to  real  estate.  In  the  subsequent  case  of  Wiltshire  v.  Rabbits,(/) 
the  vice-chancellor  of  England  decided  in  conformity  with  the  opinion 
expressed  by  him  in  Jones  v.  Jones ;  and  the  same  view  has  since  been 
adopted  by  other  judges.(m)     The  result  is  much  to  be  lamented. 

A  second  incumbrancer  on  personal  estate  who  gives  notice,  hut  makes 
no  inquiries  as  to  j^^'ior  charges,  is  preferred  to  a  prior  incumbrancer 
who  neglected  to  give  notice. (»)  This  result  appears  at  first  open  to 
observation,  for  an  assignment  of  an  equitable  interest  is  perfectly  valid, 
though  without  notice,  as  against  the  assignor,  and  all  persons  claiming 
under  him  who  have  no  equity  to  postpone  the  first  assignment.  It  is 
unimpeachable  unless  a  subsequent  purchaser  can  set  it  aside  on  the 
ground  of  fraud  against  himself;  and  if  he  made  no  inquiry,  and  there- 
fore was  not  defrauded,  why  should  he,  labouring  under  the  demerit  of 
making  no  inquiry,  displace  the  person  who  had  the  natural  priority. 
The  answer,  however,  which  has  been  made  by  Sir  James  Wigram  is  as 
follows  :(o)  <' If  the  puisne  incumbrancer  advances  his  money  bona  fde 
without  inquiry,  it  must  be  presumed  he  would  equally  have  advanced 
it  after  inquiry,  the  result  of  which  would  have  negatived  the  existence 
of  any  prior  incumbrance.  The  injury  he  sustains,  and  which  gives 
him  priority,  is,  '  ex  post  facto.'  If,  after  advancing  his  money,  he  is 
informed  that  there  is  a  prior  incumbrance,  he  will  immediately  use  dili- 
gence to  get  in  or  secure  his  property.  If,  on  the  other  hand,  he  is  not 
told  when  he  gives  the  notice  that  there  is  a  previous  incumbrancer,  he 
is  led  to  suppose  that  his  security  is  good,  &c.  The  notice  which,  when 
it  is  given,  has  the  eflfect  of  inquiry,  is  given  either  at  the  time  the 
money  is  advanced  or  afterwards,  and  the  only  distinction  between  the 
two  cases  is  a  distinction  ^between  a  party  who  advances  money  t^qq.-.-i 
at  the  time  of  taking  a  security,  and  a  party  who  takes  a  security  L         J 

(A-)  8  Sim.  pp.  642,  643.  (f)   H  Sim.  Y6. 

(m)  Wilmot  v.  Pike,  5  Hare,  14;  Bujrden  v.  Bignold,  2  Y.  &  C.  Ch.  Ca.  392  ; 
Rochard  v.  Fulton,  1  Ir.  Eq.  Rep.  131 ;  Lee  v.  HowletJ,  2  Kay  &  J.  531.  As  to 
railway  shares,  see  Dunster  v.  Glengal,  3  Ir.  Ch.  Re.  4V. 

(n)  Foster  v.  Blackstone,  1  M.  &  K.  297  ;  Foster  v.  Cockerell,  9  Bligh,  N.  S.  376  ; 
Timson  v.  Ramsbottom,  2  Kean,  49;  and  see  Etty  v.  Bridges,  2  Y.  &  C.  Ch.  Ca. 
494;  Warburton  v.  Hill,  1  Kay,  470. 

(o)  Meux  V.  Bell,  1  Hare,  86,  87  ;  and  see  Warburton  v.  Hill,  1  Kay,  478. 


498       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

for  an  antecedent  debt,  &c.  The  credit  which  the  puisne  incumbrancer 
cave  to  the  fund  after  the  notice  is  as  good  a  consideration  as  that  of  any 
other  creditor  who  takes  a  security  for  an  antecedent  debt."  The  only 
portion  of  the  vice-chancellor's  argument  which  seems  open  to  question 
is  the  assumption  that  notice  is  equivalent  to  inquiry.  It  could  hardly 
be  contended  that  a  trustee,  upon  merely  receiving  notice  of  an  incum- 
brance, is  hound  to  reply  that  prior  incumbrances  have  been  created.  It 
would,  however,  be  a  proper  act  on  his  part  so  to  do,  and  almost  a  matter 
of  course,  should  he  (as  is  usual)  be  requested  to  acknowledge  the 
receipt  of  the  notice.  In  a  large  proportion  of  cases,  therefore,  the 
reasoning  of  Vice-Chancellor  Wigram  would  be  strictly  correct ;  but, 
however  this  may  be,  the  point  is  now  clearly  concluded  by  authority. 

If  notice  be  given  to  one  of  several  co-trustees  it  is  sufficient  as  against 
all  subsequent  incumbrancers  during  the  lifetime  of  that  trustee,  for  a 
prudent  incumbrancer  is  called  u^on  to  make  inquiry  of  all  the  trustees, 
and  if  he  did  so  in  the  supposed  case,  he  would  have  come  to  a  know- 
ledge of  the  prior  charge.  Thus,  in  Smith  v.  Smith, (p)  one  Maberley, 
being  indebted  to  Smith,  assigned  to  him,  by  way  of  security,  his  life- 
interest  in  certain  funds  under  his  marriage-settlement,  and  afterwards 
became  bankrupt.  The  assignee  having  mentioned  his  security  to  one 
of  the  trustees  before  the  bankruptcy  occurred,  the  question  was,  whether 
after  such  notice  the  fund  was  at  the  time  of  the  bankruptcy  in  the 
power  and  disposition  of  the  bankrupt,  and  it  was  determined  in  the 
negative.  Lord  Lyndhurst,  in  delivering  the  judgment  of  the  court, 
observed,  <<  It  was  argued  that  notice  to  one  only  of  three  trustees  is 
insufficient — that  it  should  have  been  given  to  each  of  them,  and  that, 
this  not  having  been  done,  the  property  remained  in  the  order  and  dis- 
position of  the  bankrupt  up  to  the  time  of  his  bankruptcy ;  but  we  are 
r*n  m  °^  opinion  that  notice  t»  one  of  the  *three  trustees  was  suffi- 
L  J  cient :  no  valid  assignment  could  have  been  made  by  the  bank- 
rupt after  the  notice  to  the  trustee  :  a  second  assignee,  in  order  to  have 
obtained  apriority  over  the  first,  must  have  shown  that  he  had  exercised 
proper  precaution  in  taking  the  assignment ;  that  he  had  applied  to  the 
trustees  to  know  if  any  previous  assignment  had  been  made  ;  and  unless 
he  applied  for  this  purpose  to  each  of  the  trustees,  he  would  not  have 
exercised  due  caution,  or  done  all  that  he  ought  to  have  done.  But  if 
he  applied  to  each  of  the  trustees,  he  would  have  been  informed  by  one 
of  them  of  the  previous  assignment  to  Smith,  and  he  must  then  have 
taken  the  property,  if  at  all,  subject  to  the  claim  of  Smith." 

But  if  a  prior  incumbrancer  content  himself  with  giving  notice  to  one 
of  the  trustees,  and  that  trustee  dies,  and  a  second  incumbrancer  gives 
notice  of  his  own  assignment,  then,  as  the  first  incumbrancer  did  not  do 
his  utmost  to  guard  against  the  fraud,  and  the  second  incumbrancer 
employed  all  the  means  in  his  power  of  detecting  the  fraud,  the  loss  will 
fall  on  the  person  who  had  so  far  occasioned  that  he  might  have  pre- 
vented \t.[q) 

(p)  2  Cr.  &  Mees.  231  ;  and  see  Ex  parte  Hennessey,  1  Conn.  &  Laws.  562 ;  and 
Bee  Wise  v.  "Wise,  2  Jones  &  Lat.  412. 

(?)  See  Meux  v.  Bell,  Hare,  73 ;  Ex  parte  Hennessey,  1  Conn.  &  Laws.  562. 


PROPERTIES    OF    CESTUI'S    QUE    TRUST    ESTATE.     499 

The  case  of  Timson  v.  Ramsbottom(?-)  may  be  referred  to  this  principle. 
A  testator  appointed  Bacon  the  elder,  Timson,  Ramsbotton  the  elder,  and 
Eamsbottom  the  younger,  his  executors.  In  1816,  llamsbottom  the 
elder  died.  By  indenture  dated  in  1819,  and  made  between  Bacon 
the  younger  of  the  one  part,  and  Thomas  Bacon  (not  the  executor,) 
Langford,  and  Walford  of  the  other  part.  Bacon  the  younger,  who  took 
an  interest  under  the  will,  assigned  it  to  trustees  upon  trust  for  securing 
the  repayment  to  Bacon  the  elder  of  5000^.  and  interest.  In  1827, 
Bacon  the  elder  died,  without  having  communicated  the  charge  to  his 
co-executors.  In  1828,  a  bill  was  filed,  and  the  testator's  estate  was 
brought  into  court.  By  indenture,  dated  in  1832,  Bacon  the  younger 
assigned  the  same  interest  to  Corfield,  who  had  no  notice  of  the  prior 
incumbrance  and  made  no  inquiries,  for  securing  to  Corfield  the  sum  of 
1000?.  and  interest.  In  1833,  a  regular  notice  of  *the  assign-  r*(^i n-i 
ment  was  sent  by  Corfield  to  the  surviving  executors. (s)  Lord  L  -1 
Langdale,  in  decreeing  the  priority  of  the  second  incumbrancer,  observed, 
"  None  of  the  cases  cited  at  the  bar  appear  to  me  to  be  like  the  present — 
of  a  father  and  son  having  a  transaction  of  this  sort  between  themselves,  the 
father  being  one  of  several  executors — no  allegation  even  that  the  other 
executors  were  informed  before  the  notice  was  received  from  Corfield — 
no  ground  to  presume  that  the  transaction  was  communicated  to  the 
other  executors,  each  of  whom  had  separate  authority  to  receive  and  pay 
on  account  of  the  estate,  and  who,  if  they  had  no  notice  of  the  assign 
ment,  might  have  made  payment  to  the  assignee  without  incurring  any 
liability  whatever  on  that  account.  I  think,  therefore,  after,  I  admit,  a 
good  deal  of  hesitation,  that  the  knowledge  of  one  of  several  executors 
who  were  interested,  and  who  does  not  appear  to  have  communicated 
that  knowledge  to  his  co-executor,  is  not  sufficient  to  create  a  trust  in 
which  the  assignee  has  done  nothing  but  accepted  the  assignment."  A 
petition  of  appeal  was  presented,  and  the  pleadings  were  opened  )  but 
the  lord  chancellor  suggesting  the  necessity  of  some  previous  inquiries, 
the  parties,  rather  than  be  involved  in  further  litigation,  agreed  upon  a 
compromise. 

As  an  incumbrancer  may,  by  giving  notice  to  one  trustee,  complete 
his  title  for  the  time,  and  yet  may  afterwards  by  the  death  of  the  trustee 
be  displaced,  it  becomes  a  question  whether,  if  notice  be  sent  to  all  the 
trustees,  and  they  all  die,  a  second  incumbrancer,  who  gives  notice  to 
the  succeeding  trustees,  will  not  gain  the  priority.  Notice  properly 
given  at  the  time  may  be  thought  not  to  make  an  absolute  title,  but  one 
liable  to  be  defeated  by  an  alteration  of  circumstances ;(/)  and  an  incum- 
brancer would  do  well  not  only  to  give  notice  to  all  the  trustees  in  the 
first  instance,  but  to  watch  as  well  as  he  can  the  changes  in  the  state  of 
the  trust,  and  to  take  care,  by  repeating  his  notice,  that  there  is  never  a 

(r)  MS. ;  S.  C.  2  Keen,  35. 

(s)  The  master  of  the  rolls  in  his  judgment  states  that  notice  was  given  to 
Timson  ;  but  his  reasoning  assumes,  and  I  am  informed  the  fact  was,  that  notice 
was  also  given  to  Ramsbottom. 

{t)  See  Meux  v.  Bell,  Hare,  97  ;  but  see  Etty  v.  Bridges,  2  Y.  &  C.  Ch.  Ca.  493. 


500  LEAYIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

^^  -.  set  of  trustees  *of  wliom  there  is  not  at  least  one  who  has  notice 
L       "'J  of  his  charge. 

Notice  of  an  equitable  incumbrance  ought  to  be  given  to  the  trustees 
as  early  as  possible,  but  if  delayed  for  any  length  of  time,  it  will  be 
equally  efficacious,  provided  no  notice  of  any  other  charge  has  been 
served  in  the  interval. (i«)  Therefore,  if  the  owner  of  an  equitable  inte- 
rest, but  who  has  given  no  notice  to  the  trustees,  contract  for  the  sale  of 
it,  the  purchaser  cannot  object  to  the  title  on  the  ground  of  no  notice 
having  been  given,  unless  he  can  show  some  intermediate  incumbrance; 
but  it  is  the  vendor's  duty,  by  pointing  out  who  were  the  trustees  from 
time  to  time,  to  furnish  full  means  to  the  purchaser  of  inquiring  whether 
or  no  any  such  charge  has  been  created. (r) 

The  notice,  written  or  unwritten, (zr)  but  better  written,  may  be  given 
either  to  the  trustees  themselves  or  to  their  solicitors  ;(a:)  and  where  no- 
tice to  one  trustee  would  be  sufficient,  it  may  be  given  to  one  who  is  not 
the  acting  trustee,  there  being  no  such  distinction  known  to  the  law  be- 
tween an  acting  and  a  passive  trustee. (y)  It  may  even  be  communicated 
to  the  trustee  incidentally  in  the  way  of  conversation ;  for  the  only  point 
to  be  ascertained  is,  whether  the  existence  of  the  charge  has  in  fact  come 
to  the  personal  knowledge  of  the  trustee. (;:)  Where  the  trust  fund  con- 
sists of  a  share  in  a  company,  the  notice  may  be  sent  to  the  secretary;(a) 
but  notice  to  A.,  a  director,  and  B.,  the  actuary,  has  in  one  case  been 
considered  sufficient  jfi)  and  in  another  notice  to  A.,  one  of  the  direc- 
tors, and  B.,  an  auditor  3(c)  and  it  was  at  one  time  held  that,  as  notice  to 
r*nm  ^  partner  is  notice  to  the  partnership,  if  by  the  *constitution  of 
L  J  an  assurance  office  the  person  insuring  becomes  a  partner,  the 
assignment  of  a  policy  by  him  is  ipso  facto  notice  of  it  to  the  society,((:?) 
but  the  point  has  since  been  ruled  the  other  way.(e)  Incidental  mention 
of  the  charge  to  a  clerh  of  the  company,  though  in  the  office  of  business, 
will  not  be  constructive  notice  to  the  company  itself. (/)  The  notice 
served  on  the  trustee  should  set  forth  the  entire  amount  of  the  assignee's 
claim,  for  it  has  been  held  that  the  trustee  is  affected  by  notice  only  of 
the  amount  stated  upon  the  face  of  the  memorandum  served,  and  not  by 
notice  of  all  the  contents  of  the  instrument  to  which  the  memorandum 

{u)  Meux  V.  Bell,  1  Hare,  86,  per  Sir  J.  Wigram. 

{v)  Hobson  V.  Bell,  2  Beav.  17. 

[iv)  Smith  V.  Smith,  2  Cr.  &  Mees.  231;  Ex  parte  Carbis,  4  D.  &  C.  357,  per  Sir 
G.  Rose ;   S.  0.  1  Mont.  &  Ayr.  695,  note,  per  eundem. 

{x)  Foster  Y.  Blackstone,  1  M.  &  K.  297. 

{y)  Smith  v.  Smith,  2  Cr.  &  Mees.  233. 

{z)  Smith  V.  Smith,  2  Cr.  &  Mees.  231,  see  233. 

(a)  Ex  parte  Stright,  Mont.  502. 

(6)  Ex  parte  Watkins,  1  Mont.  &  Ayr.  689;  S.  C.  4  Deac.  k  Chit.  87  ;  but  see 
Ex  parte  Hennessey,  1  Conn.  &  Laws.  559. 

(c)  Ex  parte  Waithman,  4  Deac.  &  Chit.  412  ;  but  see  Ex  parte  Hennessey,  1 
Conn.  &  Laws.  559. 

{d)  Duncan  v.  Chamberlayne,  11  Sim.  126;  Ex  parte  Rose,  2  Mont.  Deac.  &  De 
Gex,  131 ;  and  see  Ex  parte  Cooper,  ib.  1 ;  Re  Styan,  ib.  219  ;  and  1  Phil.  105. 

(fi)  Ex  parte  Hennessey,  1  Conn.  &  Laws.  559  ;  Thompson  v.  Spiers,  13  Sim. 
469;  Martin  v.  Sedgwick,  9  Beav.  333;  and  see  Powles  v.  Page,  3  C.  B.  R.  16. 

(/)  Ex  parte  Carbis,  4  Deac.  &  Chit.  354 ;  S.  C.  1  Mont.  &  Ayr.  693,  note  (a)  ; 
Ex  parte  Boulton,  3  Jur.  N.  S.  425. 


PROPERTIES    OF    CESTUI'3    QUE    TRUST    ESTATE.     501 

refers.(^)  But  notice  of  a  cliarge  in  general  terms  without  expressing 
any  amount  in  particular  will  be  sufficient,  (/t) 

Where  money  has  been  paid  into  court  by  trustees,  it  would  seem  that 
they  remain  trustees  for  the  purposes  of  notice  until  the  fund  has  been 
dealt  with  by  the  court,  and  then  the  court  becomes  the  trustee ;(?')  and 
where  the  court  is  trustee  the  step  equivalent  to  notice  in  the  ordinary 
case  is  the  obtaining  of  a  stop-order  to  restrain  the  transfer  of  the  fund, 
and  as  between  two  assignees,  the  one  who  first  gets  a  stop-order  will 
have  priority. (/t)  It  may  be  difficult,  however,  in  many  cases  to  deter- 
mine whether  the  sole  trusteeship  resides  in  the  court,  and  the  point  is 
one  which  requires  further  decisions  to  elucidate  it.  If,  therefore,  the 
trust  fund  be  in  court,  the  following  course  should  be  adopted.  The 
intended  assignee  should  inquire  at  the  accountant's-general  and  regis- 
trar's offices  whether  any  stop-order  has  been  made,  to  restrain  the 
transfer  of  the  fund,  and  aUo  of  the  trustees,  whether  notice  has  been 
given  of  any  prior  incumbrance;  and,  on  the  completion  *of  his  r*g-[^^-| 
own  assignment,  he  should  give  notice  to  the  trustees  personally,  L  J 
and  obtain  a  stop-order  himself,  and  leave  it  at  the  accountant's-general 
office  to  be  entered.  If  the  accountant's-general  office  is  closed,  the 
order  should  still  be  entered  at  the  registrar's  office.(/)  The  inquiry  at 
the  accountant's-general  or  registrar's  offices  is  merely  for  the  purchaser's 
greater  satisfaction,  and  makes  no  part  of  his  own  title,  for  neither  the 
accountant-general  nor  the  registrar  is  the  trustee,  but  the  court  is  the 
trustee.  The  stop-order  is  the  effective  step,  and  whether  previous  in- 
quiry was  or  not  made  at  the  accountant's-general  or  registrar's  offices, 
is  immaterial. (m) 

Should  an  incumbrancer  give  notice  to  the  trustees,  but  neglect  to 
obtain  a  stop-order,  he  will  still  take  precedence  of  a  prior  incumbrancer, 
who  has  neither  obtained  an  order  nor  given  notice,  or  who  had  given 
notice  to  one  only  of  several  trustees,  and  that  trustee  had  died  before 
the  time  of  the  second  incumbrance.  It  is  true  the  second  incumbrancer 
did  not  adopt  every  precaution,  but  he  resorted  to  one  which  the  prior 
incumbrancer  neglected,  to  the  detriment  of  the  second  incumbrancer : 
while  the  first  assignee  either  sent  no  notice,  or  one  which,  by  the  death 
of  the  trustee  before  the  time  of  the  second  incumbrance,  had  become 
equivalent  to  no  notice. (?;) 

It  may  happen  that  at  the  time  of  the  incumbrance  there  is  no  repre- 
sentative of  the  trust  on  whom  notice  can  be  served,  as  if  A.  be  trustee 
of  stock  for  B.,  and  A.  dies  intestate,  or  his  executor  declines  to  act. 
In  such  a  case  it  has  been  held,  that  an  incumbrancer  gains  priority  by 

ig)  Re  Bright's  Trust,  21  Beav.  430.  (/')  See  same  case. 

[i)  Warburton  v.  Hill,  1  Kay,  4T7  ;  Matthews  v.  Gabb,  15  Sim.  51. 

{k)  Greening  v.  Beckford,  5  Sim.  195;  Swajne  v.  Swajne,  11  Beav.  463;  Elder 
V.  Maclean,  3  Jur.  N.  S.  283. 

(I)  The  petition  for  the  stop-order  (viz.,  that  the  interest  of  the  assignor  may 
not  be  paid  out  of  court  without  notice  to  the  assignee)  need  not  be  served  on 
any  of  the  other  parties  to  the  suit,  though  the  share  of  the  assignor  has  not  beea 
set  apart  to  a  separate  account.     See  General  Order,  April  3,  1841,  2  Beav.  xi. 

(m)  See  Warburton  v.  Hill,  1  Kay,  478. 

(n)  Timson  v.  Ramsbottom,  MS.;  S.  C.  2  Keen,  35,  pp.  49  and  50;  Matthews  v. 
Gabb,  15  Sim.  51 ;  Brearclifl'  v.  Dorrington,  4  De  Gex  &  Sm.  122, 


502       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

taking  all  the  precautions  that  under  the  circumstances  are  practicable, 
as  if  he  serve  a  distringas  on  the  bank  where  the  stock  is  standing,  (o) 
r^n  ''1  ^^  course,  a  purchaser  who  gives  notice,  or  obtains  a  stop- 
L  "^J  *order,  can  gain  no  priority  over  an  incumbrance  of  which  he 
has  notice  himself,  at  the  time  of  his  own  purchase. (^j)  » 


SECTION  II. 

OF  TESTAMENTARY  DISPOSITION. 

An  equitable  interest  is  transmissible  by  devise,(g^)  indeed  the  use  in 
the  laud  was  devisable  before  the  statute  of  Henry  Vlll.(r) 

But  after  the  Statute  of  Frauds  the  courts  held  that  a  trust  or  equitable 
interest  could  only  be  passed  by  a  will,  executed  and  attested  as  required 
for  the  devise  of  the  legal  estate ;  for  otherwise  a  door  would  have  been 
opened  to  all  the  mischiefs  and  inconveniences  the  statute  was  intended 
to  prevent.(s)  Whether  trusts  are  within  the  letter  of  the  act,  or  equity 
brought  them  under  its  operation  by  analogy,  it  is  not  easy  to  deter- 
mine ;(^)  undoubtedly  the  word  "lands"  has  often  extended  to  include 
trusts,(H)  and,  if  so,  there  seems  to  be  little  reason  why  trusts  should  not 
have  fallen  within  the  express  terms  of  the  statute. 

Coj^i/Jwlds,  strictly  speaking,  are  not  at  common  law  a  devisable  inte- 
rest. A  surrender  is  made  to  the  use  of  the  will,  and  the  gift  contained 
in  the  will  operates  as  a  declaration  of  the  use.  The  devisee  does  not 
come  in  by  the  will,  but  by  the  surrender  and  the  will  taken  together,  as 
if  the  name  had  been  inserted  in  the  surrender  itself. (w)  Thus  copyholds 
at  law  were  out  of  the  Statute  of  Frauds,  and  might  have  been  devised 
by  a  will  neither  signed  nor  attested ;  and,  as  equity  followed  the  law 
r*n  ri  *''^^^  ^^'^^^  ^^  ^  copyhold  was  devisable  in  the  same  manner.(?t') 
L  J  II  Where,"  said  Lord  Hardwicke,  "  the  legal  estate  is  in  trustees, 
the  cestui  que  trust  cannot,  consequently,  surrender,  but  the  lands  shall 
notwithstanding  pass  by  this  devise  according  to  the  general  rule  that 
equity  follows  the  laio  ;  for  there  (i.  e.  at  law)  a  copyhold  will  pass  under 
the  will  without  three  witnesses,  or,  where  there  are  no  witnesses  at  all ; 
and  if  this  nicety  is  not  required  in  passing  the  legal  estate,  a  fortiori, 
it  is  not  in  passing  the  equitable,  and  therefore  the  cestui  que  trust  may 

(o)  Etty  V.  Bridges,  2  Y.  &  C.  Ch.  Ca.  486. 

(p)  Warburton  v.  Hill,  1  Kay,  470. 

(q)  Cornbury  v.  Middleton,  1  Ch.  Ca.  211,  per  Wjld,  Just. ;  Greenhill  v.  Green- 
hill,  2  Veni.  G80,  per  Lord  Harcourt ;  Cole  v.  Moore,  Mo.  806,  per  Cur. ;  Philips 
V.  Brydges,  3  Ves.  127,  per  Lord  Alvanley. 

(r)  See  p.  5.37,  note  1. 

(s)  Wagstaff  V.  "WagstafF,  2  P.  W.  259,  per  Lord  Macclesfield;  Adlington  v. 
Cann,  3  Atk.  151,  per  Lord  Hardwicke;  Burgess  v.  Wheate,  1  Ed.  224,  per  Lord 
Mansfield. 

{t)  See  Burgess  v.  Wheate,  ubi  supra;  WagstaflT  v.  WagstafiP,  2  P.  W.  261. 

(m)  See  supra,  p.  593. 

{v)  Hussey  v.  Grills,  Amb.  300,  per  Lord  Hardwicke. 

(«■)  Appleyard  v.  Wood,  Sel.  Ch.  Ca.  42  ;  Wagstaft'  v.  Wagstaff,  2  P.  W.  258  ; 
Tuti'nell  V.  Page,  2  Atk.  37;  and  see  Attorney-General  v.  Andrews,  1  Ves.  225; 
but  see  Anon,  case,  cited  Wagstaff  v.  Wagstaff,  2  P.  W.  261. 


PROPERTIES    OF    CESTUI'S    QUE    TRUST    ESTATE.     503 

by  the  same  kind  of  instrument  dispose  of  the  trust  estate  as  if  he  had 
the  legal  estate  in  them."(a:)  And  the  equitable  interest  might  always 
have  been  passed  by  will,  though  not  preceded  by  a  surrender,  which 
was  required  to  pass  the  legal  estate.(7/)  But,  by  55  Geo.  3,  c.  192,  a 
surrender  was  dispensed  with  even  in  respect  of  the  legal  estate. 

As  equitable  interests  in  copyholds  were  regulated  by  analogy  to  the 
custom  alFecting  the  legal  estate,  one  might  have  supposed,  that  where 
the  legal  estate  could  not  have  been  devised,  the  equitable  estate  in  like 
manner  must  have  been  left  to  descend.  However,  it  was  decided  by  the 
court,  that  notwithstanding  the  want  of  the  custom,  the  owner  of  the 
equitable  estate  could  always  have  passed  it  by  will.(ri)  Whether  the 
will  to  have  this  effect  must  have  been  executed  according  to  the  Statute 
of  Frauds,  or  whether  any  instrument  sufficient  for  declaring  the  uses  on 
a  surrender  would  have  been  enough  does  not  appear. 

The  doctrines  laid  down  as  to  copyholds  were  not  extended  to  customary 
freeJiokls.[l)  The  determination  as  *to  copyholds  was  grounded  r^gj^-r-i 
on  the  circumstance  that  the  interest  passed,  not  by  the  will,  but  L  J 
by  the  surrender;  but  customary  freeholds  are  strictly  and  properly 
speaking  devisable,  the  estate  passing  by  the  will.  The  legal  estate  of 
customary  freeholds  was,  therefore,  not  excepted  from  the  Statute  of 
Frauds  ;(a)  and,  of  course,  a  devise  of  the  eguitahle  interest  must  have 
been  attended  with  the  same  formalities  as  if  it  had  been  a  devise  of  the 
legal. (Jj) 

Now,  by  the  late  Wills  Act,(c)  as  to  wills  made  on  or  after  the  1st  day 
of  January,  1838,  every  devise  or  bequest  of  property,  of  whatever  descrip- 
tion, whether  real  or  personal,  freehold  or  copyhold,  legal  or  equitable, 
must  be  made  by  a  will  in  writing,  signed  by  the  testator  and  attested 
by  two  witnesses. 

SECTION  III. 

OF   SEISIN   AND   DISSEISIN. 

The  term  seisin  is  properly  applicable  to  legal  estates ;  but  a  court  of 
equity  regards  actual  receipt  of  the  rents  and  profits  under  the  equitable 
title  as  equivalent  to  seisin  at  law,  and  has  often  adjudicated  upon  the 
rights  of  parties  with  reference  to  that  circumstance. 

Thus,  in  Casborne  v.  Scarfe,((/)  it  was  disputed,  whether,  as  curtesy 

(x)  Tuffnell  v.  Page,  2  Atk.  38. 

(y)  Greenhill  v.  Greenhill,  2  Vera.  G79;  Tuffnell  v.  Page,  2  Atk.  37  ;  Gibson  v. 
Rogers,  Amb.  93. 

{z)  Lewis  V.  Lane,  2  M.  &  K.  449;  Wilson  v.  Dent,  3  Sim.  385;  and  see  ante, 
pp.  45,  46,  and  p.  537,  note  1. 

(a)  Hussey  v.  Grills,  Amb.  299;   and  see  Doe  v.  Danvers,  7  East,  299. 

(b)  Ilussey  V.  Grills,  ubi  supra  ;  Willan  v.  Lancaster,  3  Russ.  108. 

(c)  7  Gul.  4,  &  1  Vic.  c.  26.  {d)   1  Atk.  603  ;  Parker  v.  Gnrter,  4  Hare,  413. 

(1)  A  copyhold  is  where  the  freehold  is  in  the  lord,  and  the  copyliolder's  estate 
passes  by  surrender.  A  customary  freehold  is  where  the  tenure  is  copyhold,  but 
the  freehold  interest  is  in  the  tenant,  and  passes  by  deed.  Bingham  v.  Woodgate, 
1  R.  &  M.  32  ;  S.  C.  Taml.  183. 


504       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

did  not  attach  at  law  without  a  seisin  in  fact,  the  husband  could  claim 
his  curtesy  out  of  the  wife's  equity  of  redemption  ;  but  Lord  Hardwicke 
said,  "It  is  objected  there  is  no  seisin  whatever  of  the  legal  estate  in  the 
wife  in  the  consideration  of  law.  But  that  is  not  the  present  question  : 
the  true  question  is,  if  there  was  such  a  seisin  or  possession  of  the  equi- 
table estate  in  the  wife,  as  in  this  court  is  considered  equivalent  to  an 
actual  seism  of  a  freehold  estate  at  common  law ;  and  I  am  of  opinion 
there  was.  Actual  possession,  clothed  with  the  receipt  of  the  rents  and 
profits,  is  the  highest  instance  *of  an  equitable  seisin,  both  of 
L         -I  which  there  were  in  this  case." 

And  so  it  was  held  that  there  was  possessio  frafris  of  a  trust,  in  other 
words,  that  if  a  person  inherited  a  trust  and  died  befoi-e  actual  seisin  of 
the  estate,  it  should  descend  to  the  brother  of  the  half  blood,  as  heir  to 
the  father,  in  preference  to  the  sister  of  the  whole  blood ;  but  if  there 
had  been  such  a  receipt  of  the  rents  and  profits  as  constituted  equitable 
seisin,  the  sister  of  the  whole  blood,  as  heir  to  the  brother,  would  exclude 
the  brother  of  the  half  blood. (e) 

The  doctrines  of  the  court  upon  the  subject  of  equitable  disseisin  cannot 
be  better  illustrated  than  by  a  statement  of  the  well  known  case  of  The 
Marquis  of  Cholmondeley  v.  Lord  Clinton. (/)  The  circumstances  were 
briefly  as  follows  : — George,  Earl  of  Orford,  conveyed  certain  manors  and 
hereditaments  to  the  use  of  himself  for  life,  remainder  to  the  heirs  of  his 
body,  remainder  as  he  should  by  deed  or  will  appoint,  remainder  to  the 
right  heirs  of  Samuel  RoUe,  with  a  power  reserved  of  revocation  and 
new  appointment.  Some  time  after  the  earl  executed  a  mortgage  in  fee, 
which  operated  in  equity  as  a  revocation  of  the  settlement  pro  tanto.  In 
1791,  the  earl  died  without  issue  and  intestate,  and  upon  his  death  the 
ultimate  remainder  (which  had  been  a  vested  interest  in  the  earl  himself, 
as  the  heir  of  Samuel  Rolle  at  the  date  of  the  deed,)  should  have  de- 
scended to  the  right  heir  of  the  earl,  but,  the  parties  mistaking  the  law, 
the  person  who  was  heir  of  Samuel  Rolle  at  the  death  of  the  earl  was 
allowed  to  enter  on  the  premises,  and  continued  in  possession,  subject  to 
the  mortgage,  up  to  the  commencement  of  the  suit.  The  bill  was  filed 
in  1812,  by  the  assign  of  the  right  heir  of  the  earl  against  the  mortgagee, 
and  the  assign  of  the  right  heir  of  Samuel  Rolle,  for  redemption  of  the 
premises,  and  on  account  of  the  profits.  It  was  debated  whether,  as  the 
legal  estate  was  vested  in  the  mortgagee,  and  the  heir  of  Samuel  Rolle 
had  held  the  possession  subject  to  a  subsisting  mortgage,  the  assign  of 
r*nQl  ^^®  ^ax\  of  Orford's  heir,  to  whom  the  equity  of  redemption  *be- 
L  J  longed  in  point  of  right,  had  been  disseised  of  his  equitable  inte- 
rest, and  was  now  barred  by  the  efi"ect  of  time.  Sir  W.  Glrant  argued, 
that  "  although  there  might  be  what  was  deemed  a  seisin  of  an  equitable 
estate,  there  could  be  no  disseisin,  first,  because  the  disseisin  must  be  of 
the  entire  estate,  and  not  of  a  limited  and  partial  interest  in  it — the  equi- 
table ownership  could  not  possibly  be  the  subject  of  disseisin  ;  and, 
secondly,  because  a  tortious  act  could  never  be  the  foundation  of  an  equi- 
table title  :  that  an  equitable  title  might  undoubtedly  be  harred  by  length 

(«)  But  see  now  3  &  4  Gul.  4,  c.  106.  (/)  2  Mer.  171  ;  2  J.  &  W.  1. 


PROPERTIES  OF  CESTUI'S  QUE  TRUST  ESTATE.  505 

of  time,  but  could  not  be  shifted  or  tranferred.i^g)  It  was  admitted  in 
the  present  case  the  equity  of  redemption  subsisted :  it  must  therefore 
belong  to  some  one  and  could  only  belong  to  the  original  cestui  que 
trnstJji)  That  so  long  as  the  trust  subsisted,  so  long  it  was  impossible 
that  the  cestuis  que  trust  could  be  barred.  .The  cestuis  que  trust  could 
only  be  barred  by  barring  and  excluding  the  estate  of  the  trustee."(t) 
Sir  W.  Grant  did  not  then  decide  the  point,  but  directed  a  case  for  the 
opinion  of  the  Queen's  Bench  on  a  question  of  law,  and  retained  the  bill 
till  the  judge's  certificate  should  be  returned. 

The  cause  was  afterwards  reheard  on  the  equity  reserved  before  Sir  T. 
Plumer,  who  determined  that  the  original  cestui  que  trust  had  been  dis- 
seised, and  was  consequently  barred. (Z^-)    "  The  grounds,"  he  said,  ^<upon 
which  it  is  contended  that  the  holder  of  the  rightful  equity  is  not  bound 
by  laches  and  non-claim  are,  that  the  tortious  possessor  does  not  claim 
to  be  the  owner  of  more  than  the  equitable  estate — the  legal  estate 
remains  unbarred  :  that  there  is  no  disseisin  abatement  or  intrusion  of  a 
trust — the  possessor  is  only  tenant  at  will,  and  may  be  dispossessed  at 
any  time  by  the  trustee  of  the  legal  estate — he  has  therefore  only  a  pre- 
carious and  permissive  possession  :  that  tortious  possession  can  never  be 
the  foundation  of  an  equitable  title."(?)     But  this  reasoning  proceeds  on 
a  mistaken  view  of  the  manner  in  which,  and  the  grounds  upon  which, 
the  bar  from  length  of  time  operates.     The  question  respects  the  plain- 
tiff's right  to  the  remedy,  not  the  defendant's  *title  to  the  estate.  r*«9Q-| 
A  tortious  act  can  never  be  the  foundation  of  a  legal  any  more  L     "'  J 
than  of  an  equitable  title.    The  question  is,  whether  the  plaintiff  has  pro- 
secuted his  title  in  due  time.     The  quiet  and  repose  of  the  kingdom,  the 
mischief  arising  from  stale  demands,  the  laches  and  neglect  of  the  right- 
ful owner,  and  all  the  other  principles  of  public  policy,  take  away  the 
remedy,  notwithstanding  the  title  veri  domini,  and  the  tortious  holding 
of  the  possessor,  (m)     As  to  the  argument  that  a  title  in  a  court  of  equity 
may  be  lost  by  laches,  but  cannot  be  transferred  without  the  act  of  the 
party,  the  case  is  the  same  in  this  respect  both  in  equity  and  law.     The 
title  is  changed  in  both  by  the  operation  of  a  public  law  upon  public 
principles  without  regard  to  the  original  private  right.     If  the  negligent 
owner  has  for  ever  forfeited  by  his  laches  his  right  to  any  remedy  to 
recover,  he  has  in  effect  lost  his  title  for  ever.    What,  then,  is  to  become 
of  the  title,  whether  legal  or  equitable  ?     Is  it  to  become  hcereditas 
Jacens,  belonging  to  no  one  ?     Is  it  to  devolve  on  the  crown,  or  to  pass 
by  escheat?     The  plaintiff  is  barred  of  his  remedy :  the  defendant  keeps 
possession  without  the  possibility  of  being  ever  disturbed  by  any  one : 
the  loss  of  the  former  owner  is  necessarily  his  gain ;  it  is  more — he  gains 
a  positive  title  under  the  statute  at  law,  and,  by  analogy,  in  equity. («) 
If  the  mere  existence  of  an  old  legal  estate  would  have  the  effect  of  pre- 
venting the  bar  attaching  upon  the  equitable  estate,  all  the  principles 
that  have  been  established  respecting  equitable  estates  and  titles  would 
be  overturned.     According  to  this  reasoning,  whenever  the  legal  estate 

(g)  See  Hopkins  v.  Hopkins,  1  Atk.  590. 

(A)  2  Mer.  357-359.  (0  2  Mer.  .361.  (A-)  2  J.  &  W.  1.  (/)  lb.  153. 

(7»)  2  J.  &  W.  155.  (h)  lb.  155,  156. 


500  LEV,' IX    ox    TUE    LAW    OF    T  K  U  S  T  S,    ETC. 

is  outstanding,  in  an  old  term,  for  instance,  to  attend  the  inheritance, 
the  earliest  equitable  title  must  in  all  cases  prevail :  quiet  enjoyment  for 
sixty,  one  hundred,  or  two  hundred  years  or  more,  would  be  no  security, 
if  the  old  term  had  existed  longer:  it  would  always  be  open  to  inquiry 
in  whom  was  vested  the  equitable  title  which  originally  existed  when 
the  old  term  was  created."(y) 

On  appeal  to  the  house  of  lords,  his  honor's  decision  was  affirmed, 
and  the  principle  on  which  it  proceeded  was  approved.  *Lord 
L  ""J  Eldon  said,  "  The  connection  between  the  legal  estate  in  the  term 
and  the  equities  of  the  persons  entitled  to  the  inheritance  was  by  no 
means  indissoluble;"  and  he  instanced  the  case  of  a  second  mortgagee, 
without  notice  of  the  incumbrance  of  the  first,  getting  in  an  outstanding 
term  by  which  he  shifted  to  himself  the  equity  that  was  previously  in 
the  first.  "  lie  could  not  agree,  and  had  never  heard  of  such  a  rule  as 
that  adverse  possession,  however  long,  would  not  avail  against  an  equit- 
able estate  :  his  opinion  was,  that  adverse  possession  of  an  equity  of 
redemption  for  twenty  years  was  a  bar  to  another  person  claiming  the 
same  equity  of  redemption,  and  vjorkecl  the  same  effect  as  abatement  or 
intnision  with  respect  to  legal  estates,  and  that  for  the  quiet  and  peace  of 
titles  and  the  xcorld  it  owjht  to  have  the  same  rffect.'^{h^ 


SECTION  IV. 

OF   DOWER   AND   CURTESY. 

A  trust,(/)  or  equity  of  redemption, (Z:)  of  freeholds,  was  until  the  late 
act(^)  exempt  from  the  li'ii  of  dower,  but  was  and  still  remains  subject 
to  the  curtesy  of  the  husband, (?h)  unless  the  husband  be  an  alien. (/i) 

An  equitable  interest  in  copyholds  (as  the  late  act  does  not  apply  to 
i}\cm(o\  is  not  subject  to  freebencli.(y>) 

r*r99n  ^^  Banks  v.  Sutton, (</)  a  case  of  dower,  Sir  J.  Jekyll  took  a 
L  "J  ^distinction  between  trusts  created  by  the  husband  himself,  and 
trusts  originating  from  a  stranger — that  in  the  former  case  the  wife 
should  not  be  dowable,  for  it  might  reasonably  be  supposed  the  husband 
had  intended  to  bur  her  dower,  but  in  the  latter  case  there  was  no  ground 

(//)  2  J.  &  w.  1r^^.  (h)  2  J.  &  w.  190,  loi. 

(i)  Colt  V.  Colt,  1  Ch.  Re.  254;  Hotlomlcy  v.  Lord  Fairfiix,  Pr.  Ch.33G;  Attor- 
ney-General V.  .Scott,  Ilcp.  t.  Tidb.  l.iH;  Chaplin  v.  Chiiplin,  3  P.  W.  220;  Sliep- 
hcrd  V.  ►Shepherd,  Id.  234,  note  (D)  ;  Curtis  v.  Curtis,  2  B.  C.  C.  630,  per  Lord 
Alvanley  ;  Liuly  Hudiior  v.  Kolherliam,  I'r.  Ch.  05,  per  Lord  .Soraers;  Godwin  v. 
Winsmore,  2  Alk.  525. 

(k)  Dixon  v.  .Seville,  1  B.  C.  C.  32tj ;  Reynolds  v.  Messing,  cited  Casborne  v. 
Scarfe,  1  Atk.  004;  2  J.  k  W.  104. 

(I)  ■:.  k  4  W.  IV.  c.  105. 

(m)  (Jhuplin  v.  Chaplin,  3  P.  W.  234,  per  Lord  Talbot;  Attorney-General  v. 
Hcolt,  Rep.  t.  Talb.  130,  per  eundcm;  Watts  v.  Hall,  1  P.  W.  108;  Sweetapple  v. 
Bindon,  2  Vcrn.  53G ;  Ciinninghain  v.  Moody,  1  Ves.  174;  Casborne  V.  Scarfe,  1 
Atk.  C03 ;  Dodson  v.  Hay,  3  B.  C.  C.  405. 

{n)  See  Dumoneel  v.  Dunioncel,  13  Ir.  Eq.  Rep.  02. 

{'))  Smith  V.  AdaniH,  5  I)e  (Jex,  Mac.  k  Gor.  712. 

{)>)  iM.ider  V.  Winle,  4  15.  C.  (.'.  521.  (ry)   2  P.  W.  700. 


PROPERTIES    OF    CESTUI'S    QUE    TRTST    ESTATE.     507 

for  such  a  presumption,  and  therefore  the  title  to  dower  should  attach. 
His  honor,  however,  did  not  rest  his  decision  upon  this  distinction, (r) 
and  in  subsequent  cases  the  refinement  has  been  rejected. (s) 

With  respect  to  curtesy,  as  at  law  the  wife,  to  entitle  her  husband  to 
curtesy,  must  have  had  seisin  in  deed  of  the  freehgld,  the  question  arises 
whether  in  the  instance  of  a  fru?t  there  must  not  have  been  such  a  seisin 
of  the  equitable  estate  in  the  wife,  as  is  considered  equivalent  to  legal 
seisin,  as  actual  possession  of  the  estate  clothed  with  the  receipt  of  the 
rents  and  profits.  It  seems  to  be  admitted  that  if  the  equitable  interest 
be  in  the  possession  of  a  stranger,  adversely  to  the  right  of  the  wife, 
there  is  no  such  seisin  in  deed  as  to  entitle  the  husband  to  his  curtesy. (/) 
But  if  money  be  articled  or  directed  by  will  to  be  laid  out  in  a  purchase 
of  land  to  be  settled  on  a  married  woman  in  fee  or  in  tail,  the  husband 
is  entitled  to  curtesy,  though  no  rent  or  interest  may  have  been  actually 
paid  during  the  coverture. (u)  This  proceeds  on  the  principle  that  the 
laches  of  the  trustees  shall  not  prejudice  the  right  of  a  third  person,  and, 
therefore,  the  claim  to  curtesy,  arises  in  the  same  manner  as  if  the  trus- 
tees had  actually  laid  out  the  money  on  land  and  completed  the  settle- 
ment, and  put  the  parties  in  possession. 

However,  it  has  been  lately  held,  that  in  the  case  of  an  ordinary  trust, 
any  seisin  of  the  wife,  though  she  has  not  possession  or  receipt  of  rents, 
is  sufficient  to  entitle  the  husband  to  curtesy.  An  estate  had  been  vested 
in  trustees  upon  trust  for  Carter,  during  the  joint  lives  of  himself  and 
Mary  his  wife,  and  upon  the  death  of  either  of  them,  and  in  default  of 
appointment  upon  trust  for  the  children  in  fee.  There  were  *two  ^^  ,.,.^^ 
children,  a  son  and  a  daughter  Elizabeth,  and  the  daughter  L  ~^-l 
married  Parker;  Carter  died  in  1S17,  and  on  his  decease  the  widow, 
although  she  had  no  life  estate,  held  possession  of  the  estate  until  her 
own  death  in  1839.  Elizabeth  Parker  died  in  1836,  and  the  question 
was.  whether  Parker  the  husband  was  tenant  by  the  curtesy,  although 
his  wife  had  never  been  in  receipt  of  rents.  The  vice-chancellor  ruled, 
that  the  possession  of  Carter  was  the  possession  of  his  trustee,  and  gave 
to  that  trustee  a  seisin  of  the  inheritance ;  that  the  death  of  Carter  did 
not  interrupt  that  seisin,  but  the  trustee  was  still  in  actual  possession, 
not  by  a  new  title  then  for  the  first  time  accruing,  but  by  continuance 
of  the  seisin  acquired  during  the  coverture ;  that  the  trustee  was  in  such 
possession  for  the  benefit  of  the  party  lawfully  entitled  thereto,  and  that 
he  continued  in  such  possession  until  the  entry  of  Mary,  which  might  be 
supposed  to  be  a  month  or  more  after  the  death  of  her  husband,  and 
that  such  interval,  there  being  no  adverse  possession,  would  entitle  the 
husband  to  his  curtesy. ^r) 

If  the  trust  be  for  the  separate  use  of  the  wife,  so  that  her  seisin 
would  not  entitle  her  husband  to  the  possession  or  profits,  it  was  formerly 
doubted  whether  in  this  case  curtesy  was  not  excluded.    Lord  Hardwicke 

(r)  2  P.  W.  715. 

(t)  See  Curtis  v.  Cnrtis.  2  B.  C.  C.  630 ;  D'Arcv  v.  Blake.  2  Sch.  &  Lef.  391 ; 
Godwin  t.  Winsmore.  2  Atk.  526:  Bursress  v.  "Wlieate,  1  Ed.  197. 
(t)  Parker  v.  Carter.  4  Hare.  413. 

(m)  Sw-eetapple  t.  Bindon,  2  Vern.  536;  Dodson  v.  Har.  3  B.  C.  C.  405. 
(rj  Parker  v.  Carter.  4  Hare,  400 :  see  Casborne  v.  Scarfe.  1  Alk.  606. 


508  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

was  originally  in  favour  of  tlie  curtesy  ;(tt-)  but  in  a  subsequent  case 
(without  any  allusion,  however,  to  his  former  opinion,)  he  decided 
against  the  claim  of  the  husband. (.r)  It  has  since  been  determined 
that  the  husband  is  entitled.(y) 

It  was  observed  by  Sir  John  Leach,  that  "  At  Imo  the  husband  could 
not  be  excluded  from  the  enjoyment  of  property  given  to  or  settled  upon 
the  wife,  but  in  equitij  he  might,  and  that  not  only  partially,  as  by  a 
direction  to  pay  the  rents  and  profits  to  the  separate  use  of  the  wife 
during  coverture,  but  wholly  by  a  direction  that  upon  the  death  of  the 
wife,  the  inheritance  should  descend  to  the  heir  of  the  wife,  and  that  the 
husband  shoidd  not  he  entitled  to  he  tenant  hy  the  curtesy ;"{£)  but 
*this  doctrine  may  admit  of  question,  as  there  appears  no  reason 
L  "'  J  why  a  person  should  be  able  to  exempt  an  equitable  any  more 
than  a  legal  estate  from  the  ordinary  incidents  of  property.  A  declara- 
tion, for  instance,  by  a  settlor,  that  a  trust  should  be  inalienable  or  not 
available  to  creditors  would  be  absolutely  void.  In  the  case  of  Bennet 
V.  Davis, (a)  which  is  cited  by  Sir  J.  Leach  for  his  position,  the  question 
discussed  was  not  whether  curtesy  attached  on  an  equitable  estate,  but 
whether  any  equitable  estate  arose.  A  testator  had  devised  lands  "  to 
his  daughter,  the  wife  of  Bennet,  for  her  separate  use,  exclusive  of  her 
husband,  to  hold  the  same  to  her  and  her  heirs,  and  that  her  husband 
should  not  be  tenant  by  the  curtesy,  nor  have  the  lands  for  his  life  in 
case  he  survived,  but  that  they  should  upon  the  wife's  death  go  to  her 
heirs."  It  was  contended  that  the  wife  could  not  be  a  trustee  for  her- 
self, and  the  husband  could  not  be  a  trustee  for  the  wife,  they  both  being 
but  one  person,  and,  therefore,  as  there  was  no  trustee  the  husband  was 
entitled  to  the  estate  beneficially.  But  the  court  held  clearly  that  the 
husband  was  a  trustee  for  the  wife,  and  observed,  "  though  the  husband 
might  be  tenant  by  the  curtesy  (viz.,  of  the  legal  estate,)  yet  he  should 
be  but  a  trustee  for  the  heirs  of  the  wife."  The  remark  certainly  implies 
that  on  the  death  of  the  wife  the  husband  would  not  be  tenant  by  the 
curtesy  of  the  equitable  estate,  but  that  question  had  not  been  adverted 
to  at  the  bar,  and  apparently,  from  the  context,  was  not  under  the  con- 
sideration of  the  court.  Even  assuming  the  remark  to  have  been  made 
advisedly,  the  view  of  the  court  may  have  been  that  the  curtesy  of  the 
husband  was  excluded  on  a  ground  now  overruled,  viz.,  that  the  trust 
being  not  simply  for  the  wife  and  her  heirs  but  during  the  coverture  for  the 
separate  use  of  the  wife,  and  after  her  death  for  her  heirs,  there  was  not 
a  sufficient  seisin  as  regarded  the  husband  for  the  curtesy  to  attach  upon.(&) 

It  must  be  acknowledged  on  all  hands,  that,  as  dower  and  curtesy 
stand  exactly  on  the  same  footing  upon  princiijle,  either  the  rejection  of 
P^pf,r-.  dower,  or  the  admission  of  curtesy,  was  *an  anomaly.  Some 
L     "^  J  high  authorities,  as  Lord  Talbot,(c)  Sir  T.  Clarke,(£?)  and  Lord 

[iv)  Roberts  v.  Dixwell,  1  Atk.  609. 

{x)  Hearle  v.  Greenbank,  3  Atk.  "715,  716;  and  see  Bennet  v.  Davis,  2  P.  "W.  316. 

(y)  Morgan  v.  Morgan,  5  Mad.  408 ;  Follett  v.  Tyrer,  14  Sim.  125. 

(z)  Morgan  v.  Morgan,  5  Mad.  411.  (a)  2  P.  W.  316. 

{b)  See  Hearle  v.  Greenbank,  3  Atk.  Y15,  716  ;  Morgan  v.  Morgan,  5  Mad.  408. 

(c)  Chaplin  v.  Chaplin,  3  P.  W.  234 ;  Attorney-General  v.  Scott,  Rep.  t.  Talb.  139. 

{d)  Burgess  v.  Wheate,  1  Ed.  196-198. 


PROPERTIES    OF    CESTUI'S    QUE    TRUST    ESTATE.     509 

Loughborough,(e)  regarded  curtesy  as  the  exception  ;  and  tlic  ground 
upon  which  they  proceeded  was,  that  as  trusts  followed  the  likeness  of 
the  use,  and  there  was  no  curtesy  of  the  use,  there  could  be  none  of  the 
trust.  On  the  other  hand,  Sir  J.  Jekyll,(/)  Lord  Hardwicke,(ryr)  Lord 
Cowper,(/i)  Lord  Mansfield,(i)  Lord  Henley,(^)  and  Lord  Iledesdale,(^) 
thought  that  consistency  would  be  restored  by  the  admission  of  the  title 
to  dower ;  for,  since  the  Statute  of  Frauds,  they  argued  the  system  of 
trusts  had  undergone  considerable  alteration,  and  was  conducted  at  pre- 
sent upon  a  much  more  liberal  footing :  the  rule  now  was,  that,  as  be- 
tween the  cestui  que  trust  and  the  trustee  and  all  claiming  by  or  under 
them,  whoever  would  have  a  right  against  the  legal  estate  had  a  like 
right  against  the  equitable.  Thus,  either  argument  had  a  fair  show  of 
reason  to  support  it ;  but  the  latter  view  was,  no  doubt,  more  in  harmony 
with  the  system  of  trusts  as  at  present  established. 

Why  the  courts  should  have  been  induced  to  leave  dower  an  excep- 
tion, has  been  accounted  for,  not  more  ingeniously,  than  satisfactorily, 
by  Lord  Redesdale : — "The  courts  of  equity,"  he  said,  "had  assumed 
as  a  principle  in  acting  upon  trusts  to  follow  the  law;  and,  according  to 
this  principle,  they  ought  in  all  cases  where  rights  attached  on  legal 
estates  to  have  attached  the  same  rights  upon  trusts,  and  consequently 
to  have  given  dower  of  an  equitable  estate.  It  was  found,  however,  that 
in  cases  of  dower,  this  principle,  if  pursued  to  the  utmost,  would  affect 
the  titles  to  a  large  proportion  of  the  estates  in  the  country ;  for  that 
parties  had  been  acting  on  the  footing  of  dower  upon  a  contrary  princi- 
ple— that  by  the  creation  of  a  trust  the  right  of  dower  would  be  pre- 
vented from  attaching.  *Many  persons  had  purchased  under  ^  _^ 
this  idea ;  and  the  country  would  have  been  thrown  into  the  L  "  J 
utmost  confusion,  if  courts  of  equity  had  followed  their  general  rule  with 
respect  to  trusts  in  cases  of  dower.  But  the  same  objection  did  not  apply 
to  tenancy  by  the  curtesy ;  for  no  person  would  purchase  an  estate  subject 
to  tenancy  by  the  curtesy  without  the  concurrence  of  the  person  in  whom 
that  right  was  vested.  Pending  the  coverture,  a  woman  could  not  aliene 
without  her  husband,  and  therefore  nothing  she  could  do  would  be  un- 
derstood by  a  purchaser  to  affect  his  interest.  But  when  the  husband 
was  seised  or  entitled  in  Ms  oion  right,  he  had  full  power  of  disposing, 
except  so  far  as  dower  might  attach ;  and  the  general  opinion  having 
long  been  that  dower  was  a  mere  legal  right,  and  that,  as  the  existence 
of  a  trust  estate  previously  created  prevented  the  right  of  dower  from 
attaching  at  law,  it  would  also  prevent  the  property  from  all  claim  of 
dower  in  equity,  and  many  titles  depending  on  this  opinion,  it  was  found 
that  it  would  be  mischievous,  in  this  instance,  to  act  on  the  general  prin- 
ciple."(?n) 

Now,  by  a  late  act,(n)  the  widow  is  entitled  to  dower  in  equity  where 
the  husband  shall  die  beneficially  entitled  to  any  interest  (not  conferring 

(e)  Dixon  v.  Savilie,  1  B.  C.  C.  327. 

(/)  Banks  v.  Sutton,  2  P.  W.  713,  714. 

(y)  Casburne  v.  Casburne,  2  J.  &  W.  200.  {h)  Watts  v.  Ball,  1  P.  W.  109. 

(?)  Burgess  v.  Whoate.  1  Ed.  224.  {k)  lb.  249-251. 

(Z)  D'Arcy  v.  Blake,  2'Sch.  &  Lef.  388. 

(m)  D'Arcj'  v.  Blake,  2  Sch.  &  Lef.  388.  (n)  3  &  4  W.  4,  c.  105. 

March,  1858.— 33 


510       LEWIN  OX  THE  LAW  OF  TKUSTS,  ETC. 

a  title  to  dower  at  law^)  which,  whether  wholly  equitable,  or  partly  legal 
and  partly  equitable,  shall  be  an  estate  of  inheritance  in  possession,  or 
equal  to  an  estate  of  inheritance  in  possession,  other  than  an  estate  in 
ioint  tenancy. (o)  But  in  either  case  the  wife  will  not  be  entitled  to 
dower  out  of  any  property  absolutely  disposed  of  by  the  husband  in  his 
lifetime  or  by  will.(j^)  Add  by  the  act  a  widow  is  not  entitled  to  dower 
out  of  any  land,  when  in  the  deed  of  conveyance  thereof  to  her  husband, 
or  in  any  deed  executed  by  him,  it  shall  be  declared  that  his  widow  shall 
not  be  entitled  to  dower  ^(j)  and  the  widow's  right  of  dower  will  also  be 
barred  by  the  husband's  declaration  of  intention  contained  in  his  will.(r) 
f^pcyj-]  The  act  does  not  extend  to  *the  dower  of  any  widow  married  on 
»-  "^  -I  or  before  the  1st  day  of  January,  1834,  and  does  not  affect  copy- 
holds, (s) 

SECTION  V. 

OF  THE  ESTATE  OF  A  FEME  COVERT  CESTUI  QUE  TRUST. 

Under  the  above  title  we  shall  first  advert  shortly  to  the  effect  of  marriage 
upon  property,  held  upon  trust  for  a /erne  covert  simply,  and  not  for  her 
separate  use;  treating,  in  order,  of  pure  personalty,  chattels  real,  and  real 
estate  of  freehold  or  inheritance ;  and  we  shall  then  proceed  to  consider 
the  nature  of  the  wife's  separate  estate. 

1.  As  respects  pure  personal  estate,  such  as  chattels  personal,  money, 
legacies,  and  choses  in  action  not  settled  to  the  wife's  separate  use,  the 
husband's  power  depends  in  cases  of  trust  just  as  in  cases  where  the  title 
of  the  wife  is  legal,  upon  the  fact  of  rechiction  into  2^ossession.{t\  If  the 
■wife's  equitable  interest  be  possessory,  and  the  trustee  be  willing  to  faci- 
litate the  reduction  into  possession  by  payment,  transfer,  &c.,  to  the  hus- 
band, the  /erne's  rights  are  at  an  end.  Nothing,  however,  short  of  an 
actual  reduction  into  possession  will  sufl&ce  ;  and  in  the  absence  of  reduc- 
tion by  the  husband  during  his  life,  the  equitable  interest  goes  to  the 
wife  by  survivorship.  It  follows  from  what  has  been  stated,  that  where 
the  wife's  interest  remains  reversionary  until  after  the  husband's  death, 
and  the  wife  survives,  she  necessarily  takes  by  survivorship. («)  And  a 
similar  principle  applies,  where  the  interest  of  the  wife  may  be  viewed  as 
partly  possessory  and  partly  reversionary, — as  where  the  wife  is  entitled 
during  her  own  life  ;  in  which  case,  the  husband  cannot  bind  the  interest 
of  the  wife  beyond  the  duration  of  the  coverture. (i;)  So,  even  if  the 
husband  assign  the  wife's  reversionary  interest,  and  it  subsequently, 
during  the  husband's  lifetime,  become  possessory,  the  wife's  right  by 

(o)  Sect.  2  ;  and  see  Smith  v.  Spencer,  2  Jur.  N.  S.  T'ZS. 

(p)  Sect.  4. 

iq)  Sect.  6.  This  enactment  operates  prospectively  only,  and  does  not  apply  to 
a  declaration  against  dower  contained  in  a  conveyance  executed  previously  to  the 
act.     See  Noble  v.  Fry,  20  Beav.  598,  and  sect.  14  of  Act. 

(r)  Sect.  7.  (s)  Powdrell  v.  Jones,  2  gm.  &  Gif.  407. 

[t)  Purdew  v.  Jackson,  1  Rus3.45,  46. 

(«)  Purdew  v.  Jackson,  1  Russ.  1  ;  Honner  v.  Morton,  3  Russ.  65. 

iy)  Stiffe  V.  Everitt,  ]  M.  &  Cr.  37  ;  Harley  v.  Harley,  10  Hare,  325. 


PROPERTIES    OF    CESTUI'S    QUE    TRUST    ESTATE.     511 

^survivorship  remains,  unless  reduction  into  possession  be  actually  pp.^o-i 
effected  by  the  husband  in  his  lifetime. (!c)  L     -  J 

So  fiir  the  analogy  between  interests  legally  vested  in  the  feme,  and 
those  which  are  held  for  her  by  a  trustee,  is  perfect ;  but  in  the  case  of 
the  equitable  interest,  the  husband's  rights  are  further  subject  to  the 
wife's  equity  to  a  settlement.  This  equity  appears  to  have  had  its 
origin(x)  in  cases  where  the  trustee,  declining  to  pay,  transfer,  &c.,  the 
icife's  possessor!/  interest  to  the  husband,  and  the  husband  filing  a  bill 
against  the  trustee  to  compel  ^ja^me/i^,  transfer,  &c.,  the  court  held  that 
those  who  seek  equity  must  do  equity ;  and  declined  to  assist  the  husband 
in  obtaining  the  wife's  equitable  interest,  except  upon  the  terms  of  some 
portion  of  it  being  settled  for  the  benefit  of  the  wife  and  her  issue.(y) 

But  whatever  may  have  been  the  source  of  this  equity,  it  is  undoubt- 
edly one  which  the  wife  has  a  right,  according  to  the  now  established 
practice  of  the  court,  to  assert  actively,  either  by  bill,(?-)  or,  in  the  case 
of  an  already  existing  suit,  by  petition,(a)  at  any  time  before  the  husband 
has  finally  reduced  the' equitable  interest  into  possession.  It  is  equally 
clear  that  the  equity  is  one  which  the  wife  has  a  right  to  waive,  by  con- 
senting in  open  court  to  the  receipt  of  the  equitable  interest  by  the 
husband. 

It  must  be  remembered,  that  the  wife's  equity  to  a  settlement,  and  her 
right  by  survivorship,  are  two  entirely  distinct  things.  The  former  arises 
only  when  the  fund  is  ready  for  reduction  into  possession  and  may  be 
waived  by  the  wife  in  open  court ;  the  latter  the  wife  cannot,  by  any  act 
during  coverture,  deprive  herself  of;  and  the  court,  as  we  have  seen  else- 
where,(i)  treats  as  nugatory  any  act  done  by  the  husband,  or  by  his  pro- 
curement, for  the  purpose  of  rendering  the  wife's  -^reversionary  [-*p9q-i 
interest  possessory,  and  thus  diminishing  her  rights  by  survivor-  L  "'J 
ship. 

2.  The  effect  of  marriage  being,  as  a  general  rule,  the  same  upon  equi- 
table as  upon  legal  interests,  it  follows  that,  as  the  husband  may  assign 
the  chattels  real  of  the  wife  at  law,  so  he  may  assign  her  trust  of  a  terux 
in  equity,(c)  though  it  be  merely  a  contingent  interest  j(rZ)  and,  of  course 
without  the  concurrence  of  either  the  wife  or  the  trustee,  and  without 
consideration.  And  this  doctrine  has  not  been  interfered  with  by  the 
case  of  Purdew  v.  Jackson  ;(e)  for  a  trust  of  chattels  real  is  not  a  chose  in 

(w)  Allison  v.  Elwin,  13  Sim.  309:  Ashby  v.  Ashbj,  1  Coll.  553:  Baldwin  v. 
Baldwin,  5  De  Ges  &  Sm.  319. 

(x)  See  Bosvil  v.  Brander,  1  P.  W.  458  ;  Browne  v.  Elton,  3  P.  W.  202. 

(ij)  As  to  the  present  practice  of  the  court  in  settling  the  whole  or  part,  see  pp. 
369,  370,  supra,  and  cases  there  referred  to. 

(2)  Lady  Elibank  v.  Montolieu,  5  Vesey,  737. 

(a)  Greedy  v.  Lavender,  13  Beav.  62  ;  Scott  v.  Spashett,  3  Mac.  &  Gor.  599. 

(6)  Pages  371, 372, supra. 

(c)  Roupe  v.  Atkinson,  Bumb.  162 ;  Mitford  v.  Mitford,  9  Yes.  99,  per  Sir  W. 
Grant;  Packer  v.  Wyndham,  Pr.  Ch.  418,419,  per  Lord  Cowper;  Franco  v.  Franco, 
4  Ves.  *528,  per  Lord  Alvanley;  Bullock  v.  Knight,  1  Ch.  Ca.  266,  per  Lord  Not- 
tingham ;  Sanders  v.  Page,  3  Ch.  Re.  223,  per  Cur.;  Macaulay  v.  Phillips,  4  Ves. 
19,  per  Lord  Alvanley;  Wikes's  case,  Lane,  54,  per  Barons  Snig  and  Altham;  S. 
C.  Roll.  Ab.  343 ;  Jewson  v.  Moulson,  2  Atk.  421,  per  Lord  Hardwicke  ;  lucledon 
V.  Northcote,  3  Atk.  i3o,  per  eundem;  Clark  v.  Burgh,  2  Coll.  221. 

{d)  Donne  v.  Hart,  2  R.  &  M.  360.  (0  1  Kuss.  1. 


512  LEWIN   ON    THE    LAW    OF    TRUSTS,    ETC. 

action,  but  a  present  interest — an  estate  in  possession. (/)  If,  however, 
the  equitable  interest  in  the  chattel  be  such  that  it  could  not  by  possi- 
bility vest  in  the  wife  during  the  coverture,  then,  inasmuch  as  a  legal 
interest  of  a  similar  kind  could  not  be  disposed  of  by  the  husband,  he 
cannot  dispose  of  the  equitable  one.(^) 

Whether  the  doctrine  regarding  the  wife's  equity  to  a  settlement  ex- 
tends to  the  equitable  chattels  real  of  the  wife,  has  been  much  doubted. 
It  was  held  in  a  late  case,  by  Vice-Chancellor  Wigram,  as  a  result  of  the 
principles  laid  down  by  Lord  Cottenham,  in  Sturgis  v.  Champneys,(/t) 
that  even  where  the  husband  could  dispose  of  the  equitable  chattel,  the 
wife  was  entitled  to  a  provision  out  of  the  equitable  interest  as  against 
the  assignee  of  the  husband,  for  valuable  consideration. (i)  The  opinion 
of  the  vice-chancellor  himself  was  the  other  way,  but  he  considered  him- 
self bound  by  the  authority  of  the  chancellor  in  the  case  referred  to. 
r*fi^m  *The  result  of  these  decisions  is  very  remarkable.  Thus,  a 
L  -I  mortgage  by  the  husband  of  the  wife's  legal  term  bars  her  of  all 
right,  except  in  the  equity  of  redemption  ;(A;)  while  under  a  similar  mort- 
gage of  the  equitable  term,  she  would  have  an  equity  to  a  settlement  as 
against  the  mortgagee.  Again,  the  legal  reversionary  term  of  the  wife, 
provided  it  be  such  as  may  by  possibility  vest  during  the  coverture,  is 
capable  of  absolute  assignment  by  the  husband  ;  and  the  wife  has  no  right 
by  survivorship,  such  as  exists  in  the  case  of  her  cliose  in  action,  whereas 
as  respects  the  assignment  of  a  similar  equitable  interest,  there  would  be 
an  equity  to  a  settlement  in  the  wife.  Supposing  then  the  not  improba- 
ble case  to  arise  of  an  actual  assignment  by  the  husband  of  the  wife's 
equitable  term,  and  of  his  death  before  any  question  raised  as  to  the  rights 
of  the  parties,  the  court  will  have  to  decide,  either  that  the  wife's  equity 
to  a  settlement  may  be  asserted  after  the  husband's  death  (an  entirely 
new  doctrine,)  or  that  the  death  of  the  husband  places  the  assignee  in  a 
better  position  than  he  was  in  so  long  as  the  husband  lived.  The  diffi- 
culties, indeed,  of  applying  the  doctrine  of  the  ivi/e's  equity  to  the  case 
of  chattels  real,  must,  undoubtedly,  prove  considerable ;  but  it  can  be 
hardly  expected,  that  the  steps  of  which  Lord  Cottenham,  in  Sturgis  v. 
Champneys,  took  the  first,  will  now  be  retraced. 

It  is  conceived  that  if  the  husband,  or  the  assignee  from  him  of  the 
wife's  equitable  term,  can  procure  an  assignment  of  the  legal  estate  from 
the  trustee,  the  wife's  equity  to  a  settlement  is  at  an  end ;  but  the  point 
is  untouched  by  authority. 

If  a  judgment  be  acknowledged  to  A.  in  trust  for  2,  feme  so?e,  and  she 
marries,  and  the  conusee  of  the  judgment  sues  an  elegit,  and  possession 
of  the  lands  is  delivered  to  him  in  trust  for  the  wife,  the  husband  may 
assign  the  extended  interest,  as  he  might  have  assigned  the  trust  of  a  term 

(/)  See  Mitford  v.  Mitford,  9  Ves.  98,  99;  Holland's  case,  Style,  21 ;  Burgess  v. 
Wheate,  1  Ed.  223,  224;  Box  v.  Jackson,  1  Drurj,  84. 
{(j)  Duberly  v.  Day,  16  Beav.  33. 

(/i)  5  M.  &  Cr.  97  ;  and  see  Wortham  v.  Pemberton,  1  De  Gex  &  Sm.  644. 
(i)  Hanson  v.  Keating,  4  Hare,  1. 
(;;)  Hill  V.  Edmonds,  5  De  Gex  &  Sm.  603  ;  Clark  v.  Cook,  3  De  Gex  &  Sm.  333. 


PROPERTIES  OF  CESTUI'S  QUE  TRUST  ESTATE.  513 

certain ;(?)  and  the  law  is  the  same  where  the  feme  is  put  in  possession  of 
lands  by  a  decree  of  the  Court  of  Chancery  until  a  certain  sum  he  raised 
by  way  of  cquitcible  eleQit.[m)  But  a  mere  judgment,  recovered  by  the 
*wife  before  the  coverture,  is  clearly  a  chose  in  action,  and  as  pgg^^-i 
such  cannot  be  disposed  of  by  the  husband,  except  by  actual  re-  L  J 
duction  into  possession. (n) 

And  it  has  been  held  that  a  mortgage  term  in  trust  for  the  wife,(o) 
or  a  term  in  trustees  for  raising  a  portion  for  her,  (^p)  may  be  assigned 
by  the  husband  so  as  to  carry  the  beneficial  interest.  But  in  these  cases 
a  doubt  arises  whether  the  debt  or  portion  may  not  be  held  to  be  the  prin- 
cipal thing  ]  and  as  the  doctrine  that  a  cliose  in  action  of  the  wife  is  not 
disposable  by  the  husband  is  of  far  more  recent  date  than  the  decisions 
referred  to,  the  question  cannot  be  considered  as  settled.  The  cases  in 
which  it  has  been  held  under  the  order  and  disposition  clause  in  bank- 
ruptcy, that  the  land  draws  with  it  the  debt,  so  as  to  exclude  the  opera- 
tion of  the  clause,  tend  strongly  to  support  the  old  authorities,  but  are 
hardly  decisive. ((^) 

A  second  husband  may  assign  the  trust  of  a  term  limited  to  the 
separate  use  of  a/eme  upon  her  first  marriage,  or  during  her  first  cover- 
ture, unless  it  appear  that  it  was  the  intention  to  extend  the  separate  use 
to  a  subsequent  marriage.(r)  It  was  held,  indeed,  by  Lord  Nottingham 
in  Sir  Edward  Turner's  case,(s)  that  a  term  thus  limited  could  not  be 
disposed  of  by  the  second  husband;  but  the  decree,  it  is  said,  originated 
in  mistake  ;(<)  and  was  reversed  in  the  house  of  lords  on  appeal. (ji) 

3.  The  case  of  the  wife's  equitable  estate  in  lands  of  freehold  or  of 
inheritance,  presents  in  the  main  the  same  general  similarity  to  that 
of  her  legal  estate  in  like  lands  as  has  been  noticed  in  the  case  of 
chattels  real.  Thus  the  husband  without  the  wife  can,  in  the  case  of 
the  equitable  as  in  that  of  the  *legal  interest,  convey  an  estate  r*(332-j 
for  the  joint  lives  of  himself  and  his  wife,  or  for  his  own  life  >-  -• 
after  issue  born.  So  he  and  his  wife  conjointly  can,  by  deed  acknow- 
ledged by  the  latter  under  the  Fines  and  Recoveries  Act,  dispose  of  the 
equitable  as  of  the  legal  interest,  and  bar  an  equitable  entail  as  they 
might  a  legal  entail,  by  deed  enrolled  in  chancery.  But  according  to 
Lord  Cottenham's  decision  in  Sturgis  v.  Champnej-s,  the  sole  acts  of  the 
husband  cannot  affect  the  wife's  equity  to  a  settlement ;  and  his  power 
over  the  equitable  interest  is,  in  this  respect,  less  extensive  than  that 
which  he  possesses  over  the  legal.     And  it  has  been  held,  that  the  mere 

[l)  Lord  Corteret  v.  Paschal,  3  P.  W.  201,  per  Lord  King.  But  this  was  before 
the  case  of  Purdew  v.  Jackson,  1  Russ.  1. 

(m)  S.  C.  ib.  19T.  {n)  Fitzgerald  v.  Fitzgerald,  8  Com.  B.  R.  611. 

(o)  Bates  V.  Dandy,  2  Atk.  207  :  Packer  v.  Wyndham,  Pr.  Ch.  412,  see  418. 

(p)  Walter  v.  Saunders,  1  Eq.  Ca.  Ab.  58  ;  Incledon  v.  Northcote,  3  Atk.  430, 
see  435  ;  and  see  Mitford  v.  Mitford,  9  Yes.  99  ;  Hore  v.  Becher,  12  Sim.  4G5. 

{q)  Jones  v.  Gibbons,  9  Vesey,  407  ;  and  see  Rees  v.  Keith,  11  Sim.  388. 

(r)  Tudor  v.  Sarayne,  2  Vern.  270;  Barton  v.  Briscoe,  Jac.  603;  Knight  v. 
Knight,  6  Sim.  121 ;  Benson  v.  Benson,  ib.  126  ;  and  see  Howard  v.  Hooker,  2  Ch. 
Re.  81  ;  Edmonds  v.  Deunington,  cited  Carleton  v.  Earl  of  Dorset,  2  Vern.  17. 

(s)   1  Ch.  Ca.  307. 

\t)  See  Sanders  v.  Page,  3  Ch.  Re.  224  ;  but  see  Pitt  v.  Hunt,  1  "^  ern.  18. 

\u)  1  Vern.  7. 


514  LETVIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

circumstance  of  the  existence  of  a  jointure-term  preceding  the  estate  of 
a,  feme  covert  tenant  in  tail  in  possession  subject  to  the  term,  sufficiently 
renders  the  wife's  estate  equitable  to  entitle  her  to  a  settlement  on  a  bill 
filed  by  her.(i') 

The  effect  of  the  husband,  or  the  husband's  assignee,  procuring  a  con- 
veyance of  the  legal  estate  so  as  to  clothe  his  equitable  interest  therewith, 
must  be  the  same  as  in  the  case  of  an  equitable  term  of  years  adverted 
to  above. 

4.  We  now  proceed  to  the  consideration  of  the  wife's  separate  estate. 
Where  property  is  settled  to  the  separate  use  of  a  feme  covert,  unques- 
tionably it  is  competent  to  her,  unless  her  power  of  anticipation  be 
restrained,(?«)  and  without  the  concurrence  of  her  trustees,  unless  the 
terms  of  the  settlement  require  it,(:x)  to  deal  with  the  property  directly 
and  expressly,  precisely  in  the  same  manner  as  if  she  were  a  feme  sole. 

The  general  principle  that  governs  the  law  of  separate  use  was  laid 
down  by  Lord  Thurlow,  and  has  been  recognized  by  the  highest  authori- 
ties, viz.,  that  a  "feme  covert,  acting  with  respect  to  her  separate  pro- 
perty, is  competent  to  act  in  all  respects  as  if  she  were  2,  feme  sole!'' {if) 
P^pr,q-i  *A  feme  covert,  therefore,  as  regards  her  separate  property, 
L  J  sues  separately  by  her  next  friend,  and  may  obtain  an  order  to 
answer  separately,(.~)  and  if  out  of  the  jurisdiction  be  served  with  pro- 
cess by  leave  of  the  court,(a)  will  be  bound  by  a  submission  in  her  bil^Z*) 
or  answer,(o)  or  by  a  contract  for  sale,(fZ)  and  her  declarations  may  be 
read  in  evidence  against  her,(e)  and  she  will  be  liable  to  an  attachment 
for  want  of  answer  where  she  answers  separately,(/)  and  similarly  for 
disobeying  the  order  of  the  court  in  a  suit  to  which  she  is  a  party  in  re- 

(w)  Worthara  v.  Peraberton,  1  De  Gex  &  Sm.  644. 

[w)  The  words  "  without  power  of  anticipation"  are  those  most  commonly  used 
to  deprive  a  feme  of  the  power  of  forestalling  the  income,  but  this  phraseology 
need  not  necessarily  be  adopted,  as  it  is  a  question  of  intention  upon  the  whole  of 
the  instrument  whether  her  power  of  anticipation  was  or  not  to  be  restrained. 
See  Ross's  Trusts,  1  Sim.  N.  S.  199;  Scott  v.  Davis,  4  M.  &  Cr.  89;  Doolan  v. 
Blake,  3  Ir.  Ch.  Re.  349,  and  cases  cited  ib. 

{x)  Grigby  v.  Cox,  1  Ves.  518,  per  Lord  Hardwicke ;  Dowling  v.  Maguire,  Rep. 
t.  Plunket,  19,  per  Lord  Plunket. 

{y)  Hulme  v.  Tenant,  1  B.  C.  C.  20. 

(2)  Jackson  v.  Haworth,  1  Sim.  &  St.  161. 

(a)  Copperthwaite  v.  Tuite,  13  Ir.  Eq.  Re.  68. 

\h)  Allen  V.  Papworth,  1  Ves.  163. 

(c)  Clerk  v.  Miller,  2  Atk.  379;  Bailey  v.  Jackson,  C.  P.  Cooper's  Rep.  183V-8, 
495.  Husband  and  wife  put  in  a  joint  answer,  and  the  wife  admitted  certain  in- 
dentures to  be  in  her  possession  and  claimed  the  estates  to  which  the  indentures 
related  to  her  separate  use  for  her  life.  The  plaintiff  moved  for  production,  but 
it  was  argued  that  the  answer  was  the  husband's  and  could  not  be  read  as  an  ad- 
mission by  the  wife.  However,  the  court  said  though  there  was  some  logical  dif- 
ficulty, there  was  none  in  substance.  That  if  the  wife  claimed  the  benefit  of  the 
separate  use  she  must  take  it  with  its  disadvantages,  and  ordered  the  production 
by  the  wife,  and  that  the  husband  should  permit  her  to  produce.  Cowdery  v. 
Way,  V.  C.  Knight  Bruce,  2d  Nov.  1843;  and  see  Callow  v.  Howie,  1  De  Gex  & 
Sm.  534;  Darbishire  v.  Home,  3  De  Gex,  Mac.  &  Gor.  113. 

{d)  Davidson  v.  Gardner,  Vend.  &  Purch.  891,  11th  ed. ;  Stead  v.  Nelson,  2 
Beav.  248 ;  and  see  Harris  v.  Mott,  14  Beav.  169. 

(e)  Peacock  v.  Monk,  2  Ves.  193,  per  Lord  Hardwicke. 

{/)  Graham  v.  Fitch,  2  De  Gex  &  Sm.  246;  Taylor  v.  Taylor,  12  Beav.  271. 


PROPERTIES    OF    CESTUI'S    QUE    TRUST    ESTATE.     515 

spect  of  her  separate  estate,(r/)  or  her  separate  property  may  be  ordered 
to  be  sequestered. (A) 

The  courts  have  further  determined,  that  if,  without  any  direct  or 
express  reference  to  her  separate  property,  a /erne  covert  bind  herself  by 
any  ivrttten  instrument,  the  implication  of  law  is,  that  she  meant  to 
charge  her  separate  estate,  for  except  with  reference  to  that  the  instru- 
ment was  without  meaning  and  nugatory.  Thus,  if  a /erne  covert  execute 
a  bond,(/)  even  to  her  husband,(Z:)  or  join  in  a  bond  with  ^another  pgo^-i 
even  with  her  husband,(?)  or  sign  a  promissory  note,[7n)  or  bill  L  '^  -1 
of  exchange,(n)  or  agree  to  take  a  leasehold  house  for  a  terms  of  years,(o) 
though  she  is  not  personally  bound,  yet  her  separate  estate  is  liable.  So 
if  she  give  a  written  retainer  to  a  solicitor,  it  entitles  him  to  have  his 
costs  out  of  her  separate  estate, (p)  though  the  circumstance  that  the 
solicitor  of  a  husband  and  wife  has  transacted  business  relating  to  the 
separate  estate  is  not  "jjc?-  se"  sufficient  to  make  that  estate  directly 
liable  for  the  amount  of  his  costs  ;{q)  and  if  she  contract  for  the  purchase 
of  an  estate,  she  may  enforce  it  against  the  vendor,  as  it  creates  a  valid 
obligation  in  respect  of  her  property.(/-)  And  it  is  immaterial  whether 
the  contract  expressly  refer  to  the  separate  property,  or  whether  the 
vendor  knew  or  not  that  purchaser  was  a  married  woman. (s)  In  one 
case  a /erne  executed  a  bond  he/ore  her  marriage,  and  her  property  having 
been  settled  upon  her  marriage  to  her  separate  use,  the  obligee  filed  his 
bill  against  the  husband  and  wife  to  have  the  debt  paid  out  of  her  sep- 
arate estate,  and  the  husband  having  absconded,  the  court  made  the 
order,  (i!) 

It  has  been  stated  that  a  /c?»e  covert  makes  her  separate  property 
liable  by  the  execution  of  any  written  instrument :  to  that  extent  there 
can  be  no  question ;  but  the  principles  upon  which  the  liability  was  held 
to  attach  were  until  recently  involved  in  much  doubt.  Thus  it  was  con- 
sidered by  Lord  Loughborough, (?<)  Sir  J.  Leach, (?:)  and  the  late  vice- 

(g)  Otway  v.  Wing,  12  Sim.  90. 

(h)  Keoo-h  V.  Cathcart,  11  Ir.  Eq.  Rep.  280  ;  and  see  cases  cited  ib. 

(j)  Lillia  V.  Airey,  1  Yes.  jun.  277;  Norton  v.  Turvill,  2  P.  W.  144;  Peacoclc 
v.  Monk,  2  Ves.  193,  per  Lord  Lougliborough ;  Tullet  v.  Armstrong,  4  Beav.  323, 
per  Lord  Langdale. 

(k)  Heatley  v.  Thomas,  15  Ves.  596. 

(l)  Heatley  V.  Thomas,  15  Ves.  596;  Stanford  v.  Marshall,  2  Atk.  68;  Hulme 
v.  Tenant,  1  B.  C.  C.  20. 

(m)  Bullpin  v.  Clarke,  17  Ves.  365;  Field  v.  Sowle,  4  Russ.  112;  Tullett  v. 
Armstrong,  4  Beav.  323,  per  Lord  Langdale;  Fitzgibbon  v.  Blake,  3  Ir.  Ch.  Re.  328. 

(n)  Stuart  v.  Kirkwall,  3  Mad.  387;  Coppin  v.  Gray,  1  Y.  &  C.  Ch.  Ca.  205  ; 
Tullett  V.  Armstrong,  4  Beav.  323,  per  Lord  Langdale.  But  where  there  is  iio 
separate  use  a  married  woman  cannot  contract  under  the  Fines  and  Recoveries 
Act.     Crofts  V.  Middleton,  2  Kay  &  J.  194. 

(o)  Gaston  v.  Frankum,  2  De  Gex  &  Sm.  561 ;  S.  C.  on  appeal,  16  Jur.  507. 

Ip)  Murray  v.  Barlee,  4  Sim.  82  ;  3  M.  &  K.  209. 

(q)  Callow  V.  Howie,  1  De  Gex  &  Sm.  521 ;  and  see  Re  Pugh,  IT  Beav.  336. 

(r)  Bowling  v.  Maguire,  Rep.  t.  Plunket,  1 ;  but  see  Chester  v.  Piatt,  Vend.  & 
Purch.  173,  13th  edit. 

(s)  Bowling  v.  Maguire,  Rep.  t.  Plunket,  1. 

(t)  Biscoe  V.  Kennedv,  cited  Hulme  v.  Tenant,  1  B.  C.  C.  17. 

(w)  See  Bolton  v.  Williams,  2  Ves.  jun.  142,  150,  156;  Whistler  v.  Newman,  4 
Ves.  145.  .      ., 

(v)  See  Greatley  v.  Noble,  3  Mad.  94  ;  Stuart  v.  Kirkwall,  ib.  389 ;  Aguilar  v. 


516  LEW  IN    ON    THE    LAW    OF    TRUSTS,    ETC. 

^  „^-,  chancellor  *of  England, («•)  that  the  separate  estate  of  a  feme 
[  '^^^J  covert  was  not  subject  to  her  general  engagements,  and  that  upon 
the  notion  that  a  feme  covert  could  not  contract,  but  that  every  dealing 
in  respect  of  her  estate  was  in  the  nature  either  of  an  appointment  or  of 
a  disposition. (x)  However,  it  is  clear  that  a /erne  covert  can,  in  respect 
of  her  separate  use,  contract,(?/)  and  that  her  written  obligations  are  not 
to  be  viewed  as  appointments,  and  do  not  operate  merely  by  way  of  dis- 
position. The  principles  that  govern  the  liability  of  a  feme's  separate 
property  have  been  very  satisfactorily  explained  by  Lord  Brougham  and 
Lord  Cottenham. 

"  The  wife,"  said  Lord  Brougham,  "  has  a  separate  estate  subject  to 
her  own  control,  and  exempt  from  all  other  interference  or  authority ; 
if  she  cannot  affect  it,  no  one  can,  and  the  very  object  of  the  settlement 
which  vests  it  in  her  exclusively  is  to  enable  her  to  deal  with  it  as  if 
she  were  discovert.  At  first  the  court  seems  to  have  supposed  that 
nothing  could  touch  it  but  some  real  charge,  as  a  mortgage,  or  an  instru- 
ment amounting  to  an  execution  of  a  power  (where  that  view  was  sup- 
ported by  the  nature  of  the  settlement,)  but  afterwards  her  intention 
was  more  regarded,  and  the  court  only  required  to  be  satisfied  that  she 
intended  to  deal  with  her  separate  property.  When  she  appeared  to 
have  done  so,  the  court  held  her  to  have  charged  it,  and  made  the  trus- 
tees answer  the  demand  thus  created  against  it.  A  good  deal  of  the 
nicety  that  attends  the  doctrine  of  powers  thus  came  to  be  imported  into 
this  consideration  of  the  subject.  If  the  wife  did  any  act  directly 
charging  the  separate  estate,  no  doubt  could  exist,  just  as  an  instrument 

j^  expressing  to  be  in  execution  of  a  power  was  always  of  course 

L  '^  J  ^considered  as  made  in  execution  of  it ;  but  so  if  by  any  refer- 
ence to  the  estate  it  could  be  gathered  that  such  was  her  intent,  the 
same  conclusion  followed.  Thus  if  she  only  executed  a  bond,  or  made  a 
note,  or  accepted  a  bill,  because  those  acts  would  have  been  nugatory  if 
done  by  a  feme  covert  without  any  reference  to  her  separate  estate,  it 
was  held  that  she  must  be  intended  to  have  designed  a  charge  on  that 
estate,  since  in  no  other  way  could  the  instruments  thus  made  by  her 
have  any  validity  or  operation,  in  the  same  manner  as  an  instrument 
which  can  mean  nothing  if  it  means  not  to  execute  a  power,  has  been 
held  to  be  made  in  execution  of  that  power,  though  no  direct  reference 
is  made  to  the  power.  But  doubts  have  been,  in  one  or  two  instances, 
expressed  as  to  the  efi'eet  of  any  dealing,  whereby  a  general  engagement 
only  is  raised,  that  is,  where  she  becomes  indebted  without  executing 

Aguilar,  5  Mad.  418  ;  Field  v.  Sowle,  4  Russ.  114 ;  Chester  v.  Piatt,  V.  &  P.  173, 
13th  ed. 

{ic)  See  Murray  v.  Barlee,  4  Sim.  82  ;  and  see  Digby  v.  Irvine,  6  Ir.  Eq.  Re.  149. 

{x)  See  Bolton  v.  Williams,  2  Ves.  jun.  150;  Greatley  v.  Noble,  3  Mad.  94; 
Stuart  v.  Kirkwall,  ib.  389 ;  Aguilar  v.  Aguilar,  5  Mad.  418 ;  Field  v.  Sowle,  4 
Russ.  114. 

{y)  See  Owens  v.  Dickenson,  1  Cr.  &  Ph.  53  ;  Dowling  v.  Maguire,  Rep.  t. 
Plunket,  19;  Master  v.  Fuller,  4  B.  C.  C.  19;  Stead  v.  Nelson,  2  Beav.  245; 
Wainwright  v.  Hardisty,  2  Beav.  363 ;  Bailey  v.  Jackson,  C.  P.  Cooper's  Rep. 
1837-8,  495;  Francis  v.  Wigzell,  1  Mad.  261;  Crosby  v.  Church,  3  Beav.  489; 
Tullett  V.  Armstrong,  4  Beav.  319. 


PROPERTIES    OF    CESTUI'S    QUE    TRUST    ESTATE.     517 

any  written  instrument  at  all.(.t)  /  own  lean  perceive  no  reason  for 
drawing  any  such  distinction.  If  in  respect  of  her  separate  estate  the 
wife  is  in  equity  taken  as  a  feme  sole,  and  can  charge  it  by  instruments 
absolutely  void  at  law,  can  there  be  any  reason  for  holding  that  her  lia- 
bility, or,  more  properly,  her  power  of  affecting  the  separate  estate,  shall 
only  be  exercised  by  a  written  instrument  ?  Are  we  entitled  to  invent 
a  rule  to  add  a  new  chapter  to  the  Statute  of  Frauds,  and  to  require 
writing  where  that  act  requires  none  ?  Is  there  any  equity  reaching 
written  dealings  with  the  property,  which  extends  not  also  to  dealing  in 
other  ways,  as  by  sale  and  delivery  of  goods  ?  Shall  necessary  supplies 
for  her  maintenance  not  touch  the  estate,  and  yet  money  furnished  to  squan- 
der away  at  play  be  a  charge  on  it,  if  fortified  by  a  scrap  of  writing  ?  No 
such  distinction  can  be  taken  upon  any  conceivable  principle."(o) 

"A  writing,"  said  Lord  Cottenham,  "  is  operative  upon  a /e7/?e's  sepa- 
rate estate,  not  by  way  of  the  execution  of  a  power,  although  that  has 
been  an  expression  sometimes  used,  but,  as  *I  apprehend,  very  pgo--! 
inaccurately  used  in  cases  where  the  court  has  enforced  the  con-  L         -^ 
tracts  of  married  women  against  their  separate  estate.     It  cannot  be  an 
execution  of  the  power,  because  it  neither  refers  to  the  power,  nor  to  the 
subject-matter  of  the  power,  nor,  indeed,  in  many  of  the  cases  has  there 
been  any  power  existing  at  all.     Besides,  as  it  was  argued  in  the  case  of 
Murray  v.  Barlee,  if  a  married  woman  enters  into  several  agreements  of 
this  sort,  and  all  the  parties  come  to  have  satisfaction  out  of  her  separate 
estate,  they  are  ^aid  jxiri  j^assu  ;  whereas,  if  the  instruments  took  effect 
as  appointments  under  a  power,  they  would  rank  according  to  the  priori- 
ties of  their  dates.     It  is  quite  clear,  therefore,  that  there  is  nothing  in 
such  a  transaction  which  has  any  resemblance  to  the  execution  of  a 
power ;  what  it  is,  it  is  not  easy  to  define.     It  has  sometimes  been 
treated  as  a  disposing  of  the  particular  estate  ;  but  the  contract  is  silent 
as  to  the  separate  estate,  for  a  promissory  note  is  merely  a  contract  to 
pay,  not  saying  out  of  what  it  is  to  be  paid,  or  by  what  means  it  is  to  be 
paid  J  and  it  is  not  correct,  according  to  legal  principles,  to  say  that  a 
contract  to  pay  is  to  be  construed  into  a  contract  to  pay  out  of  a  particu- 
lar property,  so  as  to  constitute  a  lien  on  that  property.     Equity  lays 
hold  of  the  separate  property,  but  not  by  virtue  of  anything  expressed  in 
the  contract,  and  it  is  not  very  consistent  with  correct  principles  to  add 
to  the  contract  that  which  the  party  has  not  thought  fit  to  introduce  into 
it.    The  view  taken  of  the  matter  by  Lord  Thurlow,  in  Hulme  v.  Tenant, 
1  B.  C.  C.  16,  is  more  correct.     According  to  that  view,  the  separate 
property  of  a  married  woman  being  a  creature  of  equity,  it  follows  that 
if  she  has  a  power  to  deal  with  it,  she  has  the  other  power  incident  to 
property  in  general,  namely,  the  power  of  contracting  debts  to  be  paid 
out  of  it ;  and  in  as  much  as  her  creditors  have  not  the  means  at  law  of 
compelling  payment  of  those  debts,  a  court  of  equity  takes  upon  itself  to 

(?)  It  may  be  observed  that  the  hite  Y.  C.  of  England  ^Yhile  expressing  his 
opinion  upon  the  hearing  below,  that  the  general  engagements  of  the  feme  covert 
did  not  affect  the  separate  estate,  does  not  appear  to  have  conceived  that  any  dis- 
tinction existed  between  a  written  and  unwritten  obligation ;  see  4  Sim.  94. 

(a)  Murray  v.  Barlee,  3  M.  &  K.  223. 


518  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

give  effect  to  them,  not  as  personal  liabilities,  but  by  laying  hold  of  the 
separate  property  as  the  only  means  by  which  they  can  be  satisfied.  I 
observe  that  in  Clinton  v.  Willes,  1  Sug.  Pow.  208,  n.,  Sir  Thomas 
Plumer  suggested  a  doubt  whether  it  was  necessary  that  the  feme's 
P^poo-i  engagement  should  be  ^secured  by  writing  :  it  certainly  seems 
L  J  strange  that  there  should  be  any  difference  between  a  contract  in 
writing,  when  no  statute  requires  it  to  be  in  writing,  and  a  verbal  pro- 
mise to  pay.  It  is  an  artificial  distinction  not  recognized  in  any  other 
case.     On  that  point,  however,  I  give  no  opinion  at  present. 'YJ) 

The  judgments  of  Lord  Cottenham  and  Lord  Brougham  in  the  cases 
last  referred  to  must  be  held  to  have  clearly  established  that  the  deal- 
ings of  the  feme  covert  with  her  separate  estate  do  not  operate  by  way 
of  appointment  or  disposition,  and  if  this  be  so,  it  is  difficult  to  see  on 
what  ground  any  valid  distinction  can  be  sustained  between  verhal  and 
loritten  engagements,  the  point  which  was  left  undecided  by  Lord  Cot- 
tenham. If  a  written  promise  to  pay,  as  a  promissory  note,  referring 
neither  to  the  instrument  of  trust  nor  to  the  property,  be  held  to  bind 
the  separate  estate,  upon  what  ground  can  a  verbal  assumpsit  be  dis- 
tinguished ?  So  long  as  it  could  be  maintained  that  the  dealing  of  the 
married  woman  operated  by  way  of  disposition  of  the  separate  estate, 
there  seemed  room  for  contending  that  the  disposition,  as  being  an 
assignment  of  a  trust,  must  have  been  in  writing;(c)  but  so  soon  as  it  is 
admitted  that  the  general  engagement  in  writing  binds,  it  seems  impos- 
sible to  resist  the  conclusion  that  a  verhal  general  engagement  must 
bind  likewise.  When  it  is  attempted  to  imply  a  promise  from  mere  acts 
of  the  feme,  which  may  be  construed  as  intended  to  bind  either  her 
husband  or  herself,  there  seems  room  for  a  distinction,  but  an  express 
verbal  promise,  and  an  express  written  promise  to  pay  must,  it  is  con- 
ceived, stand  on  the  same  footing.  The  question,  however,  is  one  which 
still  requires  further  elucidation  by  decision,  and  in  a  late  case  we  find 
Vice-Chancellor  Kindersley  expressing  himself  in  the  following  guarded 
language : 

''It  has  not  yet,  indeed,  been  made  the  subject  of  positive  decision, 
that  the  principle  embraces  a  feme's  verbal  engagements  or  cases  of 
common  assumpsit.  Considering,  however,  the  opinions  expressed  and 
p^/^oq-i  t^e  reason  of  the  thing,  I  think  *it  very  probable  that  when  that 
L  -I  question  arises  for  decision  it  will  be  decided  in  the  affirma- 
tive."(fZ) 

It  may  be  suggested  that  there  is  still  another  distinction,  viz.,  that 
allowing  the  general  engagements  of  the  wife,  whether  written  or  un- 
written, to  bind  her  separate  estate,  yet,  supposing  the  doctrine  of  these 
cases  to  be  founded  on  the  intention  to  charge  the  settled  property  as 
implied  by  the  circumstance  that  otherwise  the  act  would  be  nugatory, 
the  same  principle  will  not  apply  where  it  was  clearly  not  the  intention 
of  the  feme  to  create  any  charge,  but,  if  any  exist,  it  arises  upon  an 
assumpsit  in  law,  wholly  disconnected  from  the  actual  intention.     In 

(6)  Owens  v.  Dickenson,  1  Cr.  &  Ph.  53.  (c)  See  page  600,  supra. 

[d)  Vaughan  v.  Vanderstegen,  2  Drew.  183  ;  and  see  Newcomen  v.  Hassard,  4 
Ir.  Ch.  Re.  274. 


PROPERTIES    OF    CESTUI'S    QUE    TRUST    ESTATE.     519 

accordance  nvith  this  view  it  was  held  that  where  a  feme  covert  granted 
an  annuity  which  was  void  for  want  of  a  proper  memorial,  the  annuitant 
had  no  remedy  against  the  separate  estate  for  the  repayment  of  the 
purchase-money,  as  no  implication  of  an  assumpsit  could  be  raised 
against  her.(e)  So  where  a  feme  covert  misapplied  some  trust-money, 
and  had  she  been  ^feme  sole  would  have  been  liable  for  the  amount,  the 
court  thought  the  cestui  que  trust  could  not  charge  the  separate  estate, 
in  the  total  absence  of  the /erne's  intention  to  make  her  property  lia- 
ble.(/)  However,  there  appears  to  be  but  a  thin  partition  between  the 
general  engagements  of  a,  feme  not  in  writing,  and  an  assumpsit  raised 
in  law  upon  facts  done  alio  intuitu  ;  and  considering  that  recent  deci- 
sions have  rather  regarded  the /erne  covert  as  in  all  respects  ^fcme  sole 
to  the  extent  of  her  separate  estate,  it  may  not  be  safe  to  rely  upon 
cases  which  have  evidently  proceeded  upon  principles  that  have  since 
been  abandoned. 

Where  a  feme  covert  was  privy  to  a  breach  of  trust  affecting  the  fund 
of  which  she  was  tenant  for  life  to  her  separate  use,  it  was  decided  by 
Lord  Loughborough  that  she  could  proceed  against  the  trustee,  and  compel 
the  replacement  of  the  *fund.(^)  It  would  seem  difficult  to  sup-  r*g^Q-| 
port  this  decision,  even  on  the  assumption  that  the  wife's  deal-  L  J 
ings  operated  by  way  of  disposition.  And  in  a  case  before  Lord  Langdale, 
where  a  married  woman  had  concurred  actively  in  dealings  with  the 
trust  fund,  amounting  to  a  breach  of  trust,  and  she  subsequently  to  her 
husband's  decease  filed  a  bill  to  have  the  trust  fund  replaced,  his  lord- 
ship treated  the  acts  of  the  feme  as  an  actual  disposition  of  the  fund  to 
the  extent  of  her  separate  estate  therein,  and  made  the  separate  estate 
available  in  partial  exoneration  of  the  trustee's  liability,  (/i) 

In  a  subsequent  case  before  Lord  St.  Leonards,  in  Ireland,  his  lordship 
expressed  himself  thus  :  ''  I  hope  that  the  court  may  feel  itself  at  liberty 
to  treat  a  woman  entitled  for  her  separate  use  in  possession  as  sui  Juris, 
so  as  to  bind  her  interest  where  she  prevails  upon  her  trustees  to  commit 
a  breach  of  trust."  But  his  lordship  in  the  same  case  in  which  the 
separate  use  of  the /erne  covert  was  to  arise  upon  a  contingency,  viz.,  the 
insolvency  of  the  husband,  which  had  not  yet  occurred,  held  that  the 
feme  covert  could  not  by  any  act  bind  her  interest. (/) 

Supposing  a  person  entitled  to  establish  his  claim  against  the  separate 
estate,  the  limits  of  his  remedy  appear  to  be  these.  He  cannot  file  a 
bill  against  the /erne  covert  as  the  sole  defendant  and  personally  liable. 
<'  There  is  no  case,"  said  Sir  T.  Plumer,  "  in  which  this  court  has  made 

(e)  Jones  v.  Harris,  9  Ves.  486;  Aguilar  v.  Ajruilar,  5  Mad.  414;  Bolton  v. 
Williams,  4  B.  C.  C.  297;  S.  C.  2  Yes.  jun.  138;  but  in  the  latter  case,  when  be- 
fore Lord  Thurloxv,  the  point  was  not  argued,  and  Lord  Loughborough,  on  the 
rehearing,  thought  he  had  no  jurisdiction  to  decide  it. 

(/■)  Greatley  V.  Noble,  3  Mad.  79;  and  see  Nantes  v.  Corrock,  9  Yes.  182; 
Stuart  V.  Kirkwall,  3  Mad.  387. 

{g)  Whistler  v.  Newman,  4  Yes.  129;  see  observations  of  Lord  Eldon  on  this 
case;  Parkes  v.  White,  11  Yes.  223. 

{h)  Crosby  v.  Church,  3  Beav.  485 ;  and  see  Brewer  v.  Swirlcs,  2  Sm.  &  Giff. 
219;  and  the  observations  of  L.  J.  (then  Y.  C.)  Turner  in  Hughes  v.  Wells,  9 
Hare,  pp.  772,  773  ;  Hanchett  v.  Briscoe,  22  Beav.  496. 

{i)  Mara  v.  Manning,  2  Jones  &  Lat.  311. 


520       LEWIN  ox  THE  LAW  OP  TRUSTS,  ETC. 

a  persona?  decree  against  a /t'?ne  covert.  She  may  pledge  her  separate 
property  and  make  it  answerable  for  her  engagements ;  but  where  her 
trustees  are  not  made  parties  to  a  bill  and  no  particular  fund  is  sought 
to  be  charged,  but  only  a  personal  decree  against  her,  the  bill  cannot 
be  sustained. 'Y/i;)  But  the  party  aggrieved  may  file  a  bill  against  her 
and  her  trustees,  (and  the  death  of  the  husband,  which  puts  an  end  to 
the  separate  use,  either  after  the  filing  of  the  bill,(Z)  or  even  before 
r*rm  i*'("0  ^^^^  ^^^  ^^^^at  the  *suit,)  and  may  pray  payment  of  his 
L  -I  demand  out  of  vAX  j)ersonal  estate  in  the  hands  of  the  trustees  to 
which  she  is  entitled  absolutely,  (including  arrears  of  rents,)  and  also 
out  of  the  accruing  interest  or  rents,  if  there  be  no  clause  against  antici- 
pation, until  the  claim  and  costs  have  been  satisfied. (w) 

"Determined  cases,"  said  Lord  Thurlow,  "seem  to  go  thus  far,  that 
the  general  engagement  of  the  wife  shall  operate  upon  \ieY  personal  pro- 
perty, shall  apply  to  the  rents  andprofits  of  her  real  estate,  and  that  her 
trustees  shall  be  obliged  to  apply  j^^rsojicd  estate,  and  rents  and  ])7'oJits 
lohen  they  arise,  to  the  satisfaction  of  such  general  engagement ;  but  this 
court  has  not  used  any  direct  process  against  the  separate  estate  of  the 
wife,  and  the  manner  of  coming  at  the  separate  property  of  the  wife  has 
been  by  decree  to  bind  the  trustees  as  to  personal  estate  in  their  hands, 
or  rents  and  profits,  according  to  the  exigency  of  justice  or  of  the  engage- 
ment of  the  wife,  to  be  carried  into  execution."  His  lordship  then  adds, 
"  I  know  of  no  case  where  the  general  engagement  of  the  wife  has  been 
carried  to  the  extent  of  decreeing  that  the  trustees  of  her  real  estate 
shall  make  conveyance  of  that  real  estate,  and  by  sale,  mortgage,  or 
otherwise,  raise  the  money  to  satisfy  that  general  engagement  on  the 
part  of  the  wife."(o)  But  it  is  conceived  that  if  in  any  case  the  instru- 
ment were  so  specially  worded  as  to  place  the  corpus  also  at  the  disposal 
of  the.  feme  covert  as  entitled  to  it  for  her  separate  use,  the  engagements 
of  the  wife  would,  upon  principle,  bind  the  whole  interest  settled  to  the 
the  separate  use,  whether  corpus  or  income. 

If  there  be  a  clause  against  anticipation,  the  court  directs  payment  out 
of  the /erne's  separate  estate,  except  that  part  of  which  she  has  no  power 
of  anticipation. (;:))  But  where  there  is  a  restraint  upon  anticipation  the 
r*64'?l  6°o^g^™^^ts  oi  tbe  *wife  will  operate  upon  any  arrears  of  the 
'-       "'-'  separate  use  that  may  have  already  accrued. (5) 

In  one  case  the  court  refused  to  hold  the  bank  annuities  of  a  feme 
covert  liable,  as  stock  could  not  in  the  case  of  a  person  sui  Juris  be 
taken  in  execution  ;(?•)  but  now  that  stock  in  available  to  the  creditor,(s) 
the  distinction  may  be  considered  as  gone. 


(' 
(^ 


(k)  Francis  v.  Wigzell,  1  Mad.  262.  {1}  Field  v.  Sowle,  4  Russ.  112. 

(m)  Heatley  V.  Thomas,  15  Ves.  596;  but  see  Keuare  v.  Delavall,  1  Vern.  326. 

(n)  Hulme  v.  Tenant,  1  B.  C.  C.  20 :  Standford  v.  Marshall,  2  Atk.  68 ;  Murray 
V.  Barlee,  4  Sim.  82  ;  3  M.  &  K.  209  ;  Field  v.  Sowle,  4  Russ.  112 ;  Nantes  v.  Cor- 
rock,  9  Ves.  182;  Bullpin  v.  Clarke,  17  Ves.  365;  Jones  v.  Harris,  9  Ves.  492, 
493,  497;  Stuart  v.  Kirkwall,  3  Mad.  387. 

(0)  Hulme  V.  Tenant,  1  B.  C.  C.  20,  21 ;  and  see  Broughton  v.  James,  1  Coll,  26. 

(p)  Murray  v.  Barlee,  4  Sim.  95. 

(?)  Fitzgibbon  v.  Blake,  3  Ir.  Ch.  Re.  328. 

(r)  Nantes  v.  Corrock,  9  Ves.  182.  («)   1  &  2  V..  c.  110,  s.  11. 


PROPERTIES    OF    CESTUI'S    QUE    TRUST    ESTATE.     521 

After  the  death  of  the /erne  covert  the  creditor  may  file  a  bill  for  pay- 
ment of  his  debt  out  of  her  separate  estate, (?)  and  whei*e  there  are  other 
creditors,  specialties  and  simple  contract  debts  will  be  paid  pari  passit, 
as  the  separate  property  is  considered  equitable  assets. (w) 

A.  feme  covert  has,  as  incident  to  her  separate  estate,  a  power  to  dis- 
pose of  it,  and  of  all  accumulations  therefrom,  by  testamentary  instru- 
ment in  the  nature  of  a  will.(y)  And  if  a/emc  leave  a  will  and  make 
bequests,  the  usual  course  of  administration  will  be  observed.  Thus  the 
undisposed  of  estate  will  be  first  applied,  then,  general  legacies,  and,  if 
there  still  be  a  deficiency,  the  specific  legacies. (?<;) 

If  a  feme  having  personal  estate  settled  to  her  separate  use  die  with- 
out disposing  of  it,  the  husband  will  be  entitled  to  it;  as  to  so  much 
thereof  as  may  consist  of  cash,  furniture,  or  other  personal  chattels  in 
his  marital  right,  and  as  to  so  much  as  may  consist  of  "  choses  in  action," 
upon  taking  out  administration  to  his  wife. (a;) 

If  the  husband  receive  the  wife's  separate  income,  though  there  was  a 
clause  against  anticipation, (^)  and  the  wife  survives,  it  is  clear  that  she 
or  her  personal  representative  cannot  claim  against  his  estate  more  than 
one  year's  arrears,  but  it  is  still  sub  judice  whether  the  wife  or  her  repre- 
sentative *can  claim  even  so  much.  Lord  Macclesfield, (2)  Lord  j-^p  ,0-1 
Talbot,(a)  Lord  Loughborough,(&^  Sir  "W.  Grant,((?)  and  Lord  L  J 
Chancellor  Brady((:Z)  held  that  the  wife  or  her  representative  could  claim 
nothing.  On  the  other  hand,  in  the  judgment  of  Sir  T.  Sewell,(e)  Lord 
Camden,(/)  Lord  King,(^)  Lord  Hardwicke,(/i)  Lord  Eldon,((')  Sir  J. 
Leach,^^;)  Sir  J.  Stuart,^/)  and  Lord  St.  Leonards,^??!,)  the  husband's 
estate  is  liable  to  an  account  for  one  year.  The  more  commonly  received 
opinion  in  the  profession  is  thought  to  be  that  an  account  for  one  year 
should  be  given. (n) 

{t)  See  Owens  v.  Dickenson,  1  Cr.  &  Phil.  48 ;  Gregory  v.  Lockyer,  6  Mad.  90. 

[u)  Anon.  18  Ves.  258;  Owens  v.  Dickenson,  1  Cr.  &  Ph.  53,  per  Lord  Cot- 
tenham. 

[v)  Fettiplace  v.  Gorges,  1  Ves.  jun.  46;  Humpherey  v.  Richards,  2  Jur.N.  S.  432. 

\w)  Norton  v.  Turvill,  2  P.  W.  144. 

\z)  Molonv  V.  Kennedy,  10  Sim.  254;  Bird  v.  Peagrum,  13  Com.  B.  E.  G39; 
Johnstone  v.'Lumb,  15  Sim.  308 ;  Drnry  v.  Scott,  4  Y.  &  C.  2G4. 

(.y)  Rowley  v.  Unwin,  2  Kay  &  J.  138.         (z)  Powell  v.  Hankey,  2  P.  W.  82. 

(a)  Fowler  v.  Fowler,  3  P.  W.  353.     (N.  B.  A  case  of  pin-money.) 

(6)  Squire  v.  Dean,  4  B.  C.  C.  325 ;  Smith  v.  Camelford,  2  Ves.  jun.  TIG. 

(c)  Dalbiac  v.  Dalbiac,  16  Ves.  126.      {d)  Arthur  v.  Arthur,  1 1  Jr.  Eq.  Re.  511, 

(e)  Burdon  v.  Burdon,  2  Mad.  286,  note.  (/)  lb.  p.  287,  note. 

{g)  Countess  of  Warwick  v.  Edwards,  1  Eq.  Ca.  Ab.  170.  In  Thomas  v.  Ben- 
net,  2  P.  W.  341,  his  lordship  probably  held  only  that  ten  years'  arrears  could  not 
be  given. 

(h)  Townshend  v.  Windham,  2  Ves.  sen.  7 ;  Peacock  v.  Monk,  2  Ves.  sen.  190 ; 
Aston  V.  Aston,  1  Ves.  sen.  267. 

(i)  Parkes  v.  White,  11  Ves.  225;  Brodie  v.  Barry,  2  Ves.  &  B.  36. 

(k)  Thrupp  V.  Harman,  3  M.  &  K.  513.         (/)  Lea  v.  Grundy,  1  Jur.  N.  S.  953. 

(m)  Property  as  administered,  by  D.  P.,  p.  1G9. 

(w)  In  Howard  v.  Digby,  2  CI.  &  Fin.  643,  665,  Lord  Brougham  thought  that  in 
separate  rise,  as  distinguished  from  phi-moner/,  the  wife  or  her  representatives  could 
recover  the  whole  arrears,  but  this  is  clearly  untenable ;  see  Arthur  v.  Arthur,  11 
Ir.  Eq.  Rep.  513.  In  the  same  case  the  V.  C.  of  England,  when  the  cause  was 
before  hira,  hesitated  whether  the  general  rule  gave  an  account  for  a  year  or  none 
at  all;  see  Digby  v.  Howard,  4  Sim.  601. 


522       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

Tlie  principle  upon  wliich  tlie  relief  is  tlius  limited  is  that  tlie  court 
presumes  the  acquiescence  of  the  wife  in  the  husband's  receipt  dc  anno 
in  annum.  If,  therefore,  the  wife  did  not  in  fact  consent  to  the  hus- 
band's receipt,  but  remonstrated  and  required  that  the  separate  income 
should  be  paid  to  herself,  which  was  promised,  the  court  will  carry  back 
the  account  of  the  arrears  to  the  time  of  the  wife's  assertion  of  her 
claim. (o)     But  the  court  requires  very  clear  evidence  that  the  demand 

- . .-,  was  seriously  pressed  by  the  wife,  and  will  not  charge  the  *hus- 
L  -I  band's  estate  from  any  idle  complaints  against  his  receipt  which 
the  wife  may  have  occasionally  made.Q:>) 

As  the  court  proceeds  upon  the  notion  of  the  wife's  acquiescence,  the 
question  arises  where  she  is  non  compos,  and  so  incapable  of  waiving  her 
right,  whether  the  husband's  estate  shall  not  be  liable  for  the  entire 
arrears;  and  it  would  seem  that  in  such  a  case  the  husband's  estate  must 
account  for  the  whole,  but  that  the  husband's  estate  will  be  entitled  to 
an  allowance  for  payments  made  for  the  wife's  benefit,  and  which  ought 
properly  to  have  fallen  on  her  separate  estate.(g') 

In  Howard  v.  Digby(?-)  a  woman's  pin-money  was  distinguished  from 
ordinary  separate  use,  and  it  was  h'^ld  as  to  pin-money  that  the  wife's 
representatives{s^  could  make  no  claim  to  any  arrears.  The  ground  upon 
which  the  house  proceeded  was,  that  pin-money  was  for  the  personal  use 
and  ornament  of  the  wife,  and  the  husband  had  a  right  to  see  the  fund 
properly  applied,  and  that  if  the  husband  himself  found  the  necessaries 
for  which  the  pin-money  was  intended,  the  wife  or  her  representative 
could  have  no  claim  against  the  husband's  estate  when  the  requirements 
for  her  personal  use  and  ornament  had  ceased,  (i)  Lord  St.  Leonards  has 
justly  questioned  these  principles,(ij)  and  it  remains  to  be  seen  whether 
Howard  v.  Digby  will  be  followed,  except  under  exactly  similar  circum- 
stances. 

In  the  foregoing  discussion  of  the  "separate  use,"  no  distinction  has 
been  taken  between  real  and  personal  estate.  It  must  be  observed,  how- 
ever, that  in  the  case  of  realty  it  was  formerly  held  that  the  feme  covert 
r*r4^n  could  not  by  virtue  of  *the  separate  use,  if  there  were  no  express 
L  J  power,  dispose  of  the  freehold,  at  least  not  for  any  larger  interest 
than  during  the  coverture,(y)  for  between  real  and  personal  estate  it  was 

(o)  Ridout  T.  Lewis,  1  Atk.  269  ;  Moore  v.  Moore,  2  Atk.  272  ;  see  Moore  v.  Earl 
of  Scarborough,  2  Eq.  Ca.  Ab.  156;  Parker  v.  Brooke,  9  Ves.  583. 

{p)  Thrupp  V.  Harman,  3  M.  &  K.  512. 

[q)  Attorney-General  v.  Parnther,  3  B.  C.  C.  441,  4  B.  C.  C.  409;  Howard  v. 
Digby,  2  CI.  &  Fin.  671,  673. 

(r)  2  CI.  &  Fin.  634;  4  Sim.  588. 

(«)  Lord  Brougham  considered  that  the  wife  herself  might  in  her  lifetime  have 
recovered  one  year's  arrears;  see  2  CI.  &  Fin.  643,  653,  659. 

{t)  Pin-money,  said  Lord  Hardwicke,  shall  not  be  allowed  for  more  than  one 
year,  not  merely  on  a  supposal  of  her  having  given  the  arrears  to  her  husband,  but 
on  this ;  that  having  lived  with  the  husband  she  is  supposed  to  have  received  satis- 
faction that  way;  Aston  v.  Aston,  1  Ves.  sen.  267  ;  and  see  Fowler  v.  Fowler,  3  P. 
W.  355. 

(m)  Law  of  Property  as  administered,  by  D.  P.,  p.  162. 

\v)  Churchill  v.  Dibben,  2  Lord  Kenyon's  Rep.  2d  part,  68,  p.  84 ;  case  cited  in 
Peacock  v.  Monk,  2  Ves.  192  ;  and  see  2  Rop.  Husb.  and  Wife,  182,  2d  ed. ;  1  Sand, 
on  Uses,  345,  4th  ed. 


PROPERTIES    OF    CESTUI'S    QUE    TRUST    ESTATE.     523 

said  tliere  was  this  distinction,  that  on  the  death  of  the  fejnc  in  her  hus- 
band's lifetime,  the  absolute  interest  in  the  personal  estate  would  devolve 
on  the  husband,  but  the  inheritance  of  the  real  estate  would  descend 
upon  the  heir,  who  was  not  to  be  disinherited  but  in  some  formal  mode. 
However,  the  favour  shown  anciently  to  the  heir,  has  in  later  times  been 
disregarded  :  and  it  is  presumed  that  at  the  present  day,  if  lands  be  con- 
veyed to  a  trustee  and  his  heirs  upon  trust  as  to  the  fee  simple  for  a 
feme  covert  "  for  her  separate  use,"  she  may  deal  with  the  fee  as  if  she 
were  a  feme  sole.[ic)  It  is  simply  a  question  of  intention.  A  married 
woman  may  have  limited  to  her  a  power  of  disposition  over  a  fee  simple 
estate,  and  if  the  separate  use  be  so  worded  as  to  show  that  the  separate 
use  was  meant  to  extend  not  only  to  her  life-interest  but  to  the  fee,  she 
ought,  upon  principle,  to  be  able  to  deal  with  the  absolute  property  by 
virtue  of  the  separate  use,  whether  by  act  inter  vivos,  or  by  testamentary 
instrument,  as  fully  as  she  might  in  the  case  of  personal  estate.  It  can- 
not, however,  be  said  that  the  question  is  free  from  doubt.  In  a  late 
case  in  Ireland,(a;)  Sir  T.  B.  C.  Smith,  master  of  the  rolls,  appears  to 
have  considered  the  freehold  interests  of  the  wife  extending  beyond  her 
own  life  settled  to  her  separate  use  as  forming  a  special  exception  ;  and 
where  freehold  and  copyhold  premises  were  devised  to  a  feme  covert  for 
her  separate  use,  and  the  wife  entered  into  a  contract  for  sale  and  died, 
having  devised  the  property  to  her  husband,  who  filed  a  bill  against  the 
purchaser  for  specific  performance,  the  court  considered  the  question  of 
the  wife's  power  to  devise  the  estate  as  being  too  doubtful  to  r^g^g-i 
^compel  the  defendant  to  take  the  title  in  the  absence  of  the  L  J 
heir.(_y) 

It  has  been  decided  that  where  a  feme  is  dealing  with  property  by 
virtue  of  her  separate  use,  the  deed  need  not  be  acknowledged  by  her 
under  the  Fines  and  Kecoveries  Act.(s) 


SECTION  Yl. 

OF  JUDGMENTS  AGAINST  THE  CESTUI  QUE  TRUST. 

Before  entering  upon  this  topic,  it  may  be  useful  to  notice  briefly  how 
legal  interests  stand  afi"ccted  by  judgments. 

At  common  lav:  the  plaintiff  in  the  action  had  only  two  writs  of  exe- 
cution open  to  him  against  the  property  of  the  defendant:  the  fieri  facias, 
to  levy  the  debt  de  bonis  et  cataUis;  and  the  levari  facias,  to  levy  \i  dc 
terris  ct  cataUis.{a)  The  execution  under  the  latter  writ  affected  no  in- 
terest in  land  of  a  higher  description  than  a  mere  chattel  interest,  which 
last  the  sheriff  might  sell  in  like  manner  as  a  personal  chattel,  and 
affected  not  i\\Q  possession  of  the  lands,(Z^)  but  merely  enabled  the  sheriff, 

(w)  See  Stead  v.  Nelsou,  2  Beav.  245  ;  Wainwright  v.  Ilardisty,  lb.  363;  Crosby 
V.  Church,  3  Beav.  485  ;  Baggett  v.  Meux,  1  Coll.  138  ;  1  Phill.  62'? ;  see  p.  628 ; 
Major  V.  Lansley,  2  R.  &  M.  355. 

(z)  Newcomen  v.  Hassard,  4  Ir.  Ch.  Rep.  274. 

(y)  Harris  v.  Mott.  14  Beav.  IGO.      (2)  Newcomen  v.  Hassard,  4  Ir.  Ch.  Rep.  268. 

(a)  Finch's  Law,  471.  (6)  Id.  471 ;  Sir  E.  Coke's  case,  Godb.  290. 


524       LEW  IX  ON  THE  LAW  OF  TRUSTS,  ETC. 

besides  taking  the  chattels,  to  levy  the  debt  from  the  present  profits,  as 
from  the  rents  payable  by  the  tenantS;(c)  and  the  emblements,((?)  that  is, 
the  corn  and  other  crops  at  the  time  growing  on  the  lands. (e)  If  the 
sheriff,  when  he  made  his  return,  had  not  levied  the  full  amount  of  the 
debt,  a  new  levari  facias  might  have  issued,  to  be  executed  by  the  sheriff 
in  like  manner.(/)(l) 

^^  *In  order  to  provide  for  the  creditor  a  more  effectual  remedy, 
L  J  the  Statute  of  Westminster((/)  introduced  the  writ  of  elegit,  and 
enacted,  that  when  debt  was  recovered  or  knowledged,  or  damages 
awarded,  the  suiter  should  at  his  cJioice(Ji)  have  a  writ  of  Jieri  facias(^i) 
from  the  debtor's  lands  and  chattels,  or  that  the  sheriff  should  deliver  to 
him  all  the  chattels  of  the  debtor,  except  his  oxen  and  beasts  of  the 
plough,  and  one-half  of  his  land,  until  the  debt  should  be  levied  ujwn  a 
reasonable  price  or  extent. 

It  was  by  virtue  of  this  statute  that  judgment  creditors  were  first 
enabled  to  sue  execution  of  one  moiety  of  the  debtor's  lands,  whether 
vested  in  him  at  the  time  of  the  judgment  or  subsequently  acquired. 

Chattel  interest  in  lands  were,  even  be/ore  the  Statute  of  Frauds,  not 
bound  until  after  execution  awarded.  And  since  the  statute,  according 
to  the  better  opinion,  they  have,  as  falling  within  sect.  16,  been  bound 
only  from  the  delivery  of  the  writ  to  the  sheriff;  and  it  would  seem  that, 
by  the  19  &  20  Vict.  c.  97,  s.  1,  the  protection  conferred  by  the  Statute 
of  Frauds  has,  in  favour  of  persons  bona  fide  and  for  value  acquiring  a 
title  without  notice,  been  extended  to  the  time  of  actual  seizure. (7i) 

._  *We  now  come  to  the  inquiry,  what  is  the  effect  of  judgments 
L         J  upon  interests  in  eqxdty  ? 

(r)  Finch's  Law,  472;  Davy  v.  Pepys,  Plowd.  441. 

{d)  4  Com.  Ab.  118. 

(e)  Harbert's  case,  3  Re.  11  b  ;  2  Inst.  394  ;  2  Bac.  Ab.  Execution  (C)  4,  note  (5). 

(/)  F.  N.  B.  265.  {g)   13  Ed.  1,  st.  1,  c.  18. 

\h)  Whence  the  terra  elegit. 

(i)  In  these  words  the  legislature  meant  to  include  the  two  writs  oi  fieri  facias 
and  levari  facias.     2  Inst.  395. 

{k)  The  word  ''goods"  used  in  the  latter  act  is  the  same  as  that  used  in  the 
Statute  of  Frauds.  The  only  doubt  would  seem  to  be  whether  the  words  actual 
seizure  can  be  held  to  apply  to  a  chattel  real. 

(1)  There  was  also  another  species  of  levari  facias,  of  which  the  plaintiff  might 
under  particular  circumstances,  have  indirectly  availed  himself.  In  case  the  de- 
fendant was  outlawed  in  the  action,  the  sheriff,  on  the  issuing  of  the  capias  utle- 
gatum,  took  an  inquisition  of  the  lands  of  the  debtor,  and  extended  their  value, 
and  made  his  return  to  the  Exchequer.  A  levari  facias  from  the  crown  then  fol- 
lowed, commanding  the  sheriff  to  levy  the  extended  value  decxitibus,  from  ih&issues 
of  the  lands,  till  the  plaintiff  should  be  satisfied  his  debt.  These  issues  were  de- 
fined to  be  the  "rents  and  revenues  of  the  land,  corn  in  the  grange,  and  all  move- 
ables, except  horse,  harness,  and  household  stuff."  13  Ed.  1,  c.  39,  st.  1 ;  2  Inst. 
453.  The  sheriff  might  have  agisted  or  mown  the  grass.  Britten  v.  Cole,  5  Mod. 
118,  per  Lord  Holt.  But  if  at  the  date  of  the  inquisition,  the  agistment  was 
already  let,  the  money  agreed  to  be  paid  was  a  sum  in  gross,  and  was  not  subject 
to  the  levari  facias.  S.  C.  1  Raym.  301,  per  eundem.  The  cattle  of  a  stranger,  if 
levant  and  couchant  on  the  land,  were  seizable  under  the  writ,  as  included  in  the 
word  "  issues."  S.  C.  lb.  305.  The  lands  were  bound  by  the  levari  facias  from. 
the  date  of  the  writ,  so  that  any  subsequent  disposition,  though  it  served  to  pass 
the  freehold  and  possession,  yet  did  not  interrupt  the  king's  title  to  the  profits, 
lb.  307,  per  Lord  Holt. 


PROTERTIES  OF  CESTUI'S  QUE  TRUST  ESTATE.  525 

First,  with  respect  to  i\iQ  fieri  facias,  it  is  clear  that  under  the  system 
of  uses  no  relief  could  have  been  granted ;  for  the  creditor,  coming  in  by 
operation  of  law,  did  not  possess  thatp/vY-i/y  of  estate  which  could  alone 
confer  upon  him  the  right  to  sue  a  suhjioina.  During  the  earlier  period 
of  trusts  the  same  technical  notions  prevailed ;  but  Lord  Nottingham 
introduced  a  more  liberal  principle,  and  established,  what  is  now  law, 
that  a  creditor  who  was  prevented  from  executing  the  legal  process  by 
the  interposition  of  a  trust,  might  come  into  chancery,  and  prosecute 
an  equitable  fieri  facias.{T) 

But  as  the  analogy  to  law  must  be  strictly  pursued,  the  trust  of  a  chattel 
cannot  be  attached  in  equity  until  the  writ  of  execution  has  been  actually 
sued  out ;  for  till  that  time  there  is  no  Jien  upon  the  debtor's  effects, 
which  is  the  very  ground  of  the  application. T/w.) 

And  as  equity  only  follows,  and  does  not  enlarge  the  law,  the  judg- 
ment creditor  has  no  title  to  relief  where  the  chattel  of  which  the  trust 
has  been  created,  is  not  in  itself  amenable  to  any  legal  process.  An 
opinion,  indeed,  is  subjoined  to  the  case  of  Horn  v.  Horn  in  Ambler,(?<) 
that  a  trust  of  stuck  might,  before  the  late  act,  have  been  taken  by  a 
judgment  creditor  in  equitable  execution  ;  and  Taylor  v.  Jones,(o)  before 
Sir  W.  Fortescue,  M.  R.,  was  even  a  decision  to. the  same  effect;  but 
such  a  doctrine,  inasmuch  as  stock  could  not  have  been  reached  at  law, 
was  clearly  contrary  to  all  principle,  and  afterwards  incurred  the  express 
disapprobation  of  Lord  Thurlow,(jj)  Lord  Planners, (g)  Sir  W.  Mac- 
Mahon,^/-)  Sir  Archibald  *Macdouald,(x)  and  Lord  Eldon  •,[t^  r^piQ-i 
Lord  Thurlow  observing,  that  the  opinion  in  Horn  v.  Horn  was  L  j 
so  anomalous  and  unfounded,  that  forty  such  would  not  satisfy  his 
mind.(jt)  Now,  however,  by  the  late  act  for  extending  the  remedies 
of  creditors  {1  k  2  Vict.  c.  110,  s.  14,)  a  judgment  debtor's  interest  in 
stock,  whether  legal  or  equitable,  is  rendered  available  for  the  payment 
of  debts.(i;) 

The  judgment  creditor  is  of  course  entitled  to  the  same  relief  (subject 
to  such  restrictions  as  we  have  mentioned)  against  the  equity  of  redemp- 
tion of  a  chattel. (<f) 

As  regards  the  levari  facias,  a  court  of  equity  would,  it  is  presumed, 
as  in  the  instance  of  the  fieri  facias,  assist  in  the  execution  of  it  where 
obstructed  by  the  intci-position  of  a  trust;  but  the  writ  being  a  lien  at 
law,  not  upon  the  lands,  but  only  on  the  present  profits  of  the  land.*,  a 

{I)  Pit  V.  Hunt,  2  Ch.  Ca.  7.3  ;  Gore  v.  Bowser,  3  Sm.  &  Gif.  1 ;  Anon,  case,  cited 
Balch  V.  Wastall,  1  P.  W.  445 ;  and  see  Scott  v.  Scholej,  8  East,  485  ;  Eastwick  v. 
Caillaud,  5  T.  R.  420.  Kirkby  v.  Dillon,  C.  P.  Coopers  Rep.  1837-38,  504;  Simp- 
son V.  Taj-lor,  7  Ir.  Eq.  Rep.  182;  Bennett  v.  Powell,  3  Drew.  326;  Gore  v.  Bow- 
ser, 3  Sm.  &  Giff.  1. 

(m)  Angell  v.  Draper,  1  Vern.  309 ;  Shirley  v.  Watts,  3  Atk.  200. 

(«)  Amb.  79. 

(o)  2  Aik.  COO;  and  see  a  note  of  S.  C.  in  Grojran  v.  Cooke,  2  B.  &  B.  233. 

{p)  Dundas  v.  Dutens,  2  Cox,  240.  {q)  Grogan  v.  Cooke,  2  B.  &  B.  233. 

(r)  Plaskct  v.  Dillon,  1  Hog.  328.  (s)  Caillaud  v.  Estwick,  2  Anst.  384. 

[t)  Rider  v.  Rider,  10  Ves.  3G8.  (u)  Grogan  v.  Cooke,  2  B.  &  B.  233. 

{v)  See  pp.  600.  G70,  infra. 

{w)  King  V.  Marissal,  ::  Atk.  192  ;  Shirley  V.  Watts,  lb.  200;  Burdon  7.  Ken- 
nedy, lb.  739  ;  and  see  King  v.  De  la  Motte,  Forr.  1C2. 

April,  1857.— 34 


526       LEWIX  ON  THE  LAW  OF  TRUSTS,  ETC. 

court  of  equity  could  not  go  farther  and  affect  either  the  freehold  or  the 
possession. 

The  elegit  owing  its  origin  to  a  statute,  a  doubt  may  suggest  itself  in 
limine  whether,  when  the  legislature  has  passed  an  enactment  against 
the  legal  estate,  a  court  of  equity  can,  consistently  with  its  general  prin- 
ciples, apply  by  analogy  the  same  provision  to  the  case  of  a  trust.  A 
legal  estate,  for  example,  was  by  act  of  parliament  made  forfeitable  with- 
out inquest  for  treason,  and,  as  the  statute  enumerated  "  uses,"  it  was 
contended,  and  seems  to  be  established,  that  trusts  have  also  under  that 
expression  become  forfeitable  to  the  crown ;  but  it  was  never  pretended 
that,  had  "  uses"  not  been  inserted  in  the  act,  a  court  of  equity  could 
have  subjected  trusts  to  forfeiture  by  any  inherent  jurisdiction  of  its  own. 
It  must  be  remarked,  however,  that  the  act  which  originated  the  elegit 
was,  like  the  statute  de  don  is,  prior  to  the  introduction  of  the  use ;  and 
as  equity,  by  analogy  to  the  Statute  of  Westminster,  has  admitted  entails 
and  remainders  of  trusts,  why  may  it  not,  by  analogy  to  ^another 
L  -1  act  of  the  same  statute,  allow  equitable  interests  to  be  affected  by 
judgments  ?(x\ 

It  would  seem  that  in  Lord  Keeper  Bridgman's  time  a  trust  was  not 
subject  to  an  elrgit.[i/)  But  the  authority  of  that  distinguished  lawyer 
has  not  been  followed  in  succeeding  times. 

It  was  long  ago  established  that  a  judgment  creditor  might  redeem  a 
mortgage  in  fee, (5.)  and  it  is  now  equally  settled  that  he  may  prosecute 
his  elegit  against  any  other  equitable  interest. (a) 

Davidson  v.  Foley, (i)  and  Flasket  v.  Dillon, (c)  were  cases  of  a  legal 
elegit,  but  may  be  usefully  noticed  to  prevent  misapprehension.  In  the 
former  case.  Lord  Foley  had  devised  an  estate  to  trustees  for  a  term  of 
ninety-nine  years  upon  certain  trusts,  and  subject  thereto,  to  Thomas 
Foley  for  life,  with  remainders  over.  His  lordship  had  also  devised  other 
estates  to  trustees  for  a  term  of  one  hundred  and  one  years,  and  subject 
thereto,  to  Thomas  Foley  for  life,  &c.,  as  before  judgments  were  entered 
up  against  Thomas  Foley,  and  the  trusts  of  the  terms  having  been  satis- 
fied, and  the  beneficial  interest  resulting  to  the  tenant  for  life,  the  credi- 
tors sued  out  elegits,  and  filed  a  bill  praying  to  have  the  terms  declared 
attendant  on  the  inheritance,  and  that  the  trustees  might  be  restrained 
from  setting  up  the  terms  at  law.     The  warrants  of  attorney  on  which 

{x)  See  PtTall  v.  Eolle.  1  Atk.  184.  (y)  See  Pratt  v.  Colt,  Freem.  139. 

(2)  Greswold  v.  Marsham,  2  Ch.  Ca.  170 :  Crisp  v.  Heath,  7  Vin.  Ab.  52.  (The 
former  case  has  been  compared  with  Reg.  Lib.,  A.  1685,  f.  399,  and  the  report  ap- 
pears substantially  correct :  the  latter  case  has  not  been  found.)  Plucknett  v. 
Kirke,  1  Vern.  411 ;  Reg.  Lib.  1686,  B.  fol.  181,  184,  see  infra  ;  Sharpe  v.  Earl  of 
Scarborough,  4  Yes.  538,  and  the  cases  cited  lb.  541 ;  Stileman  v.  Ashdown,  2  Atk. 
477  :  Fothergill  v.  Kendrick,  2  Vern.  234 ;  and  see  Steele  v.  Phillips,  1  Beat.  188  : 
Forth  T.  Duke  of  Norfolk,  4  Mad.  503  ;  King  v.  De  la  Motte,  Forr.  162  ;  and  see 
Freeman  v.  Taylor,  3  Keb.  307. 

(a)  Forth  v.  Duke  of  Norfolk.  4  Mad.  504.  per  Sir  J.  Leach  :  Serj.  Hill's  opinion, 
lb.  506,  note  (a) ;  Foster  v.  Blackstone,  1  M.  &:  K.  311,  per  Sir  J.  Leach  ;  and  see 
Lodge  T.  Lyseley,  4  Sim.  70  ;  Kirkby  v.  Dillon,  C.  P.  Cooper's  Rep.  1837-38,  504 ; 
Neate  v.  Duke  of  Marlborough.  9  Sim.  60,  3  M.  &  Cr.  407 :  Adams  v.  Paynter,  1 
Coll.  530. 

[b)  2  B.  C.  C.  203 :  3  B.  C.  C.  598.  (c)   1  Hog.  324. 


PROPERTIES    OF    CESTUI'S    QUE    TRUST    ESTATE.     527 

the  judgments  were  grounded  were  ^afterwards  discovered  to  be  r:i;^--i-, 
void ;  but  Lord  Thurlow,  in  dismissing  the  bill,  observed,  "  All  •-  -I 
he  could  gather  from  the  cases  was  that  where  the  court  could  see  there 
was  a  good  judgment  it  would  not  stop  without  aiding  that  title  by  what 
was  called  an  equitable  eletjlt,  but  he  could  not  carry  it  higher  than  that. 
The  (cquifas  scquens  legem  must  be  such  as  to  assure  the  court  the  case 
was  such  as  it  could  be  followed  by  a  legal  execution  ;  but  where  it  ap- 
peared the  judgment  could  not  be  followed  by  a  legal  elegit,  the  court 
could  not  follow  it  by  an  eqnitoMe  elegit." 

In  Flasket  v.  Dillon,  Lord  Dillon,  the  tenant  for  life,  had  demised  an 
estate  to  trustees  for  ninety-nine  years,  if  he  should  so  long  live,  upon 
trust,  after  discharging  certain  incumbrances,  to  pay  to  himself  for  life 
an  annuity  of  5000^.,  and,  subject  thereto,  upon  certain  trusts  for  his 
creditors.  A  judgment  was  afterwards  entered  up  against  him,  and  an 
elegit  sued  out,  but  as  there  was  no  beneficial  interest  upon  which  the 
ehgit  could  operate  at  law,  the  judgment  creditor  filed  a  bill  to  attach 
the  rent-charge  of  5000^.  a  year  in  equity.  Sir  William  MacMahou 
said,  '<■  The  rule  of  law  is,  that  the  freehold  property  of  the  debtor  shall 
be  liable  to  the  demands  of  his  judgment  creditors.  Lord  Dillon  insists 
that  the  magical  operation  of  a  voluntary  deed  shall  clear  it  from  all  in- 
cumbrances. If  the  statute  of  uses  had  executed  the  trusts  of  this  deed, 
Lord  Dillon's  interest  would  have  been  extendible,  and  the  interposition 
of  a  trust  cannot  exempt  it  in  this  court. "((7)  His  honor's  decision  in 
favour  of  the  judgment  creditor  was  affirmed  on  appeal  by  Lord  Manners, 
and  afterwards,  on  a  further  appeal,  by  the  house  of  Lords. (e) 

These  then  were  cases  of  a  judgment  creditor  having  a  legal  elegit, 
and  seeking  to  remove  an  impediment  to  the  legal  execution  of  it;  but 
in  Tunstall  v.  Trappesf/)  the  elegit  was,  strictly  and  properly  speaking, 
equitable.  By  an  indenture  of  1811,  Trappes  appointed  an  estate  to  the 
use  that  Davis  should  receive  an  annuity,  and,  subject  thereto,  to  the 
use  of  Withy  and  his  heirs,  upon  trust  in  the  first  place  to  secure  the 
^annuity,  and  then  in  trust  for  Trappes.  In  1812,  a  judgment  j-^p,^^-. 
was  entered  up  against  Trappes  by  Sir  Henry  Lawson.  In  the  L  "'-' 
beginning  of  the  year  1814,  Trappes  proposed  to  one  Cranmer,  that 
Cranmer  should  payoff"  Davis's  annuity,  and  several  incumbrances  which 
were  prior  to  it,  and  take  a  mortgage  of  the  property  for  securing  the 
advances  he  should  thus  make.  On  the  1st  July,  1814,  Cranmer  paid 
off"  Davis's  annuity,  and  took  a  conveyance  of  the  legal  estate  from  Withy 
to  himself  in  fee,  by  way  of  secm-ity  for  the  moneys  advanced  and  to  be 
advanced.  He  afterwards  paid  off"  several  charges  prior  to  the  annuity, 
and  took  assignments  of  the  terms  by  which  they  were  secured  in  the 
names  of  trustees.  It  was  proved  that  Cranmer  had  notice  of  the 
judgment  some  time  between  the  first  and  eleventh  days  of  July,  1814, 
and  with  such  notice  had  continued  to  make  advances  to  a  very  con- 
siderable amount.  The  question  was,  whether  Cranmer  was  bound  by 
the  judgment,  and  if  bound  at  all,  then  to  what  extent.  The  vice-chan- 
cellor decided  that  Cranmer  was  entitled  to  priority  over  the  judgment 

{d)  1  Hog.  328.  {e)  2  Bl.  N.  R.  239. 

(/)  3  Sira.  286:  and  see  Lewis  v.  Lord  Zouche.  2  Sim.  388. 


528       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

creditor  in  respect  of  the  sums  paid  by  him  for  procuring  the  assignments 
of  the^^-i'or  charges,  and  for  redeeming  the  annuity,  those  incumbrances 
having  been  created  prior  to  the  time  when  Cranmer  had  notice  of  the 
judgment ;  but  that  his  claim  in  respect  of  the  moneys  advanced  by  him 
subsequently  to  that  period  should  be  postjioned  to  the  judgment.  In 
other  words,  the  trust  estate  was  bound  by  the  judgment  in  the  hands  of 
a  purchaser  with  notice,  where  he  could  not  protect  himself  under  the 
assignment  of  a  prior  charge. 

The  right  of  an  elegit  creditor  upon  an  equitable  interest  has  also  since 
been  assumed  in  the  case  of  Neate  v.  Duke  of  Marlborough. (<;) 

The  present  doctrines  of  the  court  have  been  well  expressed  by  Sir  J. 
Leach.  "A  judgment  creditor,"  he  said,  "has  at  law  by  the  Statute  of 
Frauds  execution  against  the  equitable  freehold  estate  of  the  debtor  in 
the  hands  of  his  trustee,(A)  provided  the  debtor  has  the  whole  bene- 
ficial  interest ;  but  if  *he  has  left  a  partial  interest  only  in  his 
L  J  equitable  freehold  estate,  the  judgment  creditor  has  no  execution 
at  law,  though  he  may  come  into  a  court  of  equity,  and  claim  there  the 
same  satisfaction  out  of  the  beneficial  interest,  as  he  would  be  entitled 
to  at  law  if  it  were  legal.  Every  voluntary  assignee  of  this  equitable 
interest  of  the  debtor  will  be  in  the  same  situation,  with  respect  to  the 
claim  of  the  judgment  creditor,  as  the  debtor  himself  was.  Every 
assignee  for  valuable  consideration  will  hold  the  equitable  interest  dis- 
charged of  the  claim  of  the  judgment  creditor,  unless  he  has  notice  of 

it."(o 

An  estate  given  by  A.  to  trustees  upon  trust  to  convert  into  personalty 
for  the  benefit  of  B.  has  in  equity  all  the  properties  of  personalty,  and 
under  the  old  law  therefore  a  judgment  against  the  person  to  whom  the 
proceeds  of  the  sale  were  directed  to  be  paid  conferred  no  lien  upon  the 
proceeds. 

Thus  in  Foster  v.  Blackstone(/L)  estates  were  conveyed  by  the  Duke 
of  Marlborough  to  trustees  in  fee  upon  trust,  if  the  said  trustees  shoidd 
in  their  discretion  think  jjroper,  but  not  othertvise,  to  raise  any  sum  of 
money  for  satisfaction  of  any  debts  due  and  owing  from  his  son  the 
Marquis  of  Blandford,  which  the  trustees  should  consider  advisable  to  be 
paid;  and  to  pay  the  surplus,  if  any,  of  such  moneys  as  should  be  raised 
in  the  lifetime  of  the  duke  unto  the  duke,  and  the  surplus  of  such  as 
should  be  raised  after  his  decease  unto  the  Marquis  of  Blandford  ;  and, 
subject  to  the  trusts  aforesaid,  the  trustees  were  to  stand  seised  of  the 
said  hereditaments  in  trust  for  the  said  duke  for  his  life,  and  after  his 
decease  in  trust  for  the  marquis  in  fee.  After  the  death  of  the  duke 
the  trustees  converted  the  whole  of  the  estate  into  personalty;  and  a 
creditor,  whose  judgment  had  been  entered  up  against  the  Marquis  of 
Blandford,  sought  to  attach  the  trust  moneys  in  the  hands  of  the  trus- 
tees, as  bound  by  the  judgment.  Sir  J.  Leach  said,  <'The  creditor 
insists,  that  by  force  of  his  judgment  he  has  a  lien  upon  the  moneys  pro- 

(g)  9  Sim.  GO ;  3  M.  &  C.  407  ;  and  see  Bennett  v.  Powell,  3  Drewrj,  236. 

(/«)  As  to  the  operation  of  the  Statute  of  Frauds,  see  infra,  p.  664. 

(i)  Forth  V.  Duke  of  Norfolk,  4  Mad.  504. 

{k)  1  M.  &  K.  29'7 ;  and  see  Browne  v.  Cavendish.  I  Jones  &  Lat.  633. 


PROPERTIES    OF    CESTUI'S    QUE    TRUST    ESTATE,     529 

duced  by  the  sale  of  the  trust  estates  ;  and  if  the  interest  of  the  marquis 
were  *a  vested  interest  in  land,  the  creditor  would  be  entitled;  r*pr^-| 
but  the  creditor  had  no  legal  lien  upon  the  trust  estates,  but  a  L  J 
possihle  equitable  lien  depending  upon  a  contingency.  The  trustees  had 
a  full  authority  to  sell,  and  to  convert  the  realty  into  personalty.  If  any 
part  had  been  unsold  by  the  trustees,  it  would  have  remained  land,  and 
the  judgment  would  have  attached  upon  it;  but  it  was  all  sold  by  the 
trustees,  and  the  contingency  which  would  have  entitled  the  judgment 
creditor  never  took  effect." 

Whether  the  same  principle  applied  were  a  judgment  was  entered  up 
against  a  person  after  he  had  contracted  to  sell  was  much  doubted. 

Upon  this  subject  we  have  the  following  opinion  of  Mr.  Serj.  Hill : — 
H.  A.  S.,  seised  in  fee  of  an  estate,  subject  to  his  mother's  jointure  and 
to  younger  children's  portions,  contracted  for  the  sale  of  the  property  in 
lots  to  different  purchasers.  After  the  date  of  the  contracts,  H.  A.  S. 
executed  a  conveyance  to  trustees,  upon  trust  to  convey  to  the  different 
purchasers,  and  to  invest  part  of  the  purchase-money  in  the  funds  as  an 
indemnity  against  the  jointure  and  portions,  and  to  pay  the  residue  to 
himself.  Subsequently  to  the  deed  of  trust,  H.  A.  S.  acknowledged  a 
judgment.  Mr.  Serj.  Hill  was  consulted  on  the  part  of  the  trustees, 
whether  they  would  be  safe  in  paying  the  money  to  H.  A.  S.,  as  against 
the  judgment  of  which  they  had  notice,  and  also  as  against  judgments, 
if  any,  of  which  they  had  no  notice.  The  opinion  was  as  follows  :  "  As 
to  the  judgment  of  which  the  trustees  had  notice,  though,  to  many  pur- 
poses, the  estate  agreed  to  be  sold  is  from  the  time  of  the  contract  the 
estate  of  the  purchaser;  yet  I  think  the  vendor  is  not  before  payment  of 
the  money  to  be  considered  a  mere  trustee,  for  the  estate  continues  his 
at  laic,  and  even  in  equity  he  has  a  right  to  detain  it  until  payment  of 
the  purchase-money ;  and,  therefore,  the  judgment  creditor  hath  a  right 
to  so  much  of  the  purchase-money  as  is  sufficient  to  satisfy  the  judgment; 
and  the  trustees  having  notice  of  his  right  ought  to  pay  it,  if  the  money 
is  in  their  hands.  As  to  the  judgments,  if  any,  of  which  the  trustees 
have  no  notice,  I  think  a  court  of  equity  will  not  make  them  pay  the 
money  over  again,  if  they  apply  it  according  to  the  deed  of  trust,  because 
*I  think  equity  in  the  case  of  a  judgment  creditor,  and  a  bona 
fide  purchaser  or  a  trustee  without  notice,  will  not  interpose  on 
either  side,  but  will  leave  the  law  to  take  its  course. "(/) 

And  Sir  J.  Leach  appears  to  have  concurred  in  this  opinion,  that  the 
vendor's  interest  after  the  contract  is  bound  by  a  judgment ;  for  in  Forth 
V.  The  Duke  of  Norfolk,(?>i)  where  a  person  had  mortgaged  an  estate  in 
fee,  and  then  contracted  to  sell,  and  afterwards,  before  the  conveyance, 
acknowledged  a  judgment.  Sir  J.  Leach  said,  "  An  assignee  for  valuable 
consideration  is  discharged  of  the  claim  of  the  judgment  creditor,  unless 
he  had  notice  of  it  before  the  consideration  jJaid.  If  A.,  before  the  actual 
conveyance  to  him,  had  received  notice  of  the  judgment,  then,  being  a 
purchaser  of  an  equitable  interest  in  a  freehold  estate  from  the  debtor, 
and  not  having  paid  his  purchase-money,  he  would  have  been  equally 

(/)  Cited  Forth  v.  Duke  of  Norfolk,  4  Mad.  506,  note  (a). 
(m)  4  Mad.  503. 


[*655] 


530  LEWIX    ON    THE    LAW    OF    TRUSTS,    ETC. 

affected  with  the  judgment  as  tlie  debtor  himself;  and  if  he  had  after- 
wards paid  the  whole  purchase-money  to  the  debtor,  he  would  have  still 
remained  hable  to  the  judgment  creditor." 

But  in  a  subsequent  case  Sir  L.  Shadwell  said,  '•'  he  should  not  have 
o-iven  the  opinion  which  the  learned  Serjeant  had  done,  for  it  appeared 
to  him  that  from  the  time  H.  A.  S.  entered  into  binding  contracts  to  sell 
the  lands,  he  not  having  judgments  against  him  at  that  time,  the  pur- 
chasers had  a  right  to  file  a  bill  against  him,  and  have  the  legal  estate 
conveyed. "(?t)  And  it  may  be  argued  that  if  the  vendor  die  after  the 
contract,  but  before  the  conveyance,  the  purchase-money  would  go  to  the 
executor  ;(o)  and  that  if  the  contract  work  a  notional  conversion  of  the 
land  into  money  in  respect  of  the  vendor's  representatives,  the  same  con- 
sequence ought  to  follow  in  respect  of  the  vendor's  judgment  creditors. 

The  case  where  A.  conveys  to  trustees  upon  trust  to  sell  for  a  limited 
r*R'Rn  purpose,  as  payment  of  incumbrances,  and  to  pay  the  *surplusto 
L  -I  himself,  and  where,  before  sale,  a  judgment  is  entered  up  against 
A.,  presents  still  more  difficulty  than  that  last  discussed ;  as  does  also 
the  case  of  a  mortgage  by  A.  with  power  of  sale  to  the  mortgagee  and  of 
a  judgment  entered  up  before  sale.  It  is  of  course  clear  that  in  either 
case  the  power  of  giving  receipts  binds  as  against  the  judgment  creditor, 
so  that  a  purchaser  from  the  trustee  or  mortgagee  is  not  concerned  to  see 
that  the  judgments  are  satisfied  ;0j)  but  this  still  leaves  open  the  question 
whether  the  judgment  was,  under  the  old  law,  a  lien  or  charge  on  the  pro- 
ceeds in  the  hands  of  the  mortgagee  or  trustee,  a  point,  however,  which  is 
now  unimportant,  save  so  far  as  it  bears  upon  the  present  state  of  the  law. 

How  far  the  principles  discussed  in  Foster  v.  Blackstone  and  the  other 
cases  referred  to  are  applicable  to  the  altered  state  of  the  law  under  the 
1  &  2  Vict.  c.  110,  has  not  yet  been  settled.  As  between  the  purchaser 
and  the  judgment  creditor,  the  power  of  the  trustee  or  mortgagee  to  give 
receipts,  remains,  it  is  conceived,  the  same.  But  the  large  words  of  sec- 
tion 13  of  the  1  &  2  Vict.  c.  110,  will,  doubtless,  in  many  cases,  confer 
an  equitable  charge  where,  under  the  old  law,  the  judgment  would  not 
have  created  a  lien.  Thus,  where  A.  was  entitled  to  an  annuity  secured 
by  a  covenant  and  an  assignment  of  leaseholds  in  triist  to  sell,  it  was  held 
that  A.'s  interest  under  the  deed  might,  under  the  act,  be  made  available 
for  payment  of  a  judgment  debt  due  from  her.(^q\  So  where  a  testator 
gave  real  estate  to  trustees  upon  trust  to  levy  and  raise,  during  the  life 
of  A.,  an  annuity  of  400?.,  and  directed  the  annuity  to  be  held  upon  trust 
for  the  support,  clothing,  and  maintenance  of  A.,  the  court,  having  pre- 
viously decided  that  the  trust  was  one  for  the  benefit  of  A.  generally,(r) 
held  that  a  judgment  creditor  of  A.  was  entitled  to  a  charge  on  the 
annuity  under  the  act.(s)     Again,  where  a  person  covenanted  to  pay  A. 

(n)  Lodge  v.  Lyseley,  4  Sim.  75;  and  see  Craddock  v.  Piper,  14  Sim.  310,  -where, 
however,  it  does  not  appear  whether  the  judgments  were  entered  up  before  the 
actual  sale  or  the  decree  for  sale. 

(o)  See  Farar  v.  Winterton,  5  Beav.  1,  and  Curre  v.  Bowver,  ib.  6,  note. 

(p)  Lodge  V.  Lyseley,  4  Sim.  75;  Alexander  v.  Crosbie,  6  Ir.  Eq.  Rep.  513. 

(q)  Harris  v.  Davidson,  15  Sim.  128. 

(r)  Younghusband  v.  Gisborne,  1  Coll.  400.  («)  S.  C.  1  De  Gex  &  Sm.  209. 


PROPERTIES    OF    CESTUI'S    QUE    TRUST    ESTATE.     ^Zl 

5000?.,  and  tliat  the  sum  should  be  a  charge  on  certain  *land,  it  r:(./^F7T 
was  held  that  a  judgment  creditor  of  A.  was  entitled  to  a  charge  L  '  -■ 
on  the  land  in  respect  of  A.'s  interest  therein. (^)  -^gainj  where  a  mort- 
gage with  power  of  sale  was  executed,  and  before  sale  a  judgment  was 
entered  up  against  the  mortgagor,  who  was  subsequently  discharged 
under  the  Insolvent  Act,  and  after  such  discharge  the  mortgagee  sold 
under  the  power  of  sale,  it  was  held  that  the  judgment  creditor  was 
entitled  to  the  surplus  proceeds  of  sale.^w) 

It  is  clear  therefore  that,  in  the  actual  state  of  the  law  and  decisions, 
a  vendor  or  mortgagee  holding  surplus  proceeds  of  sale  in  his  hands  could 
not  properly  be  advised  to  pay  them  to  the  settlor  or  mortgagor  without 
the  discharge  or  concurrence  of  the  judgment  creditor.  Neither  could 
a  purchaser,  where,  as  in  the  case  before  Serjeant  Hill,  judgments  have 
been  entered  up  against  the  vendor  subsequently  to  the  contract,  safely 
complete  without  the  discharge  or  concurrence  of  the  judgment  creditor. 
If,  however,  the  owner  of  an  estate  contract  to  sell,  and  then  judgments 
are  entered  up  against  him,  it  is  clear  that  the  judgments,  though  they 
may  attach  at  law  upon  the  land,  yet  cannot  affect  it  in  equity,  and  there- 
fore, if  the  purchase-money  can  be  properly  applied,  the  purchaser  may 
compel  the  creditor  to  release  the  judgment,  and  if  the  legal  estate  at  the 
time  of  the  judgment  was  not  in  the  vendor  but  in  a  trustee  for  him,  the 
judgment  cannot  affect  the  land  either  at  law  or  in  equity,  though  it  may 
affect  the  purchase-nionef/  ;  and  should  there  be  any  intervening  incum- 
brances between  the  contract  and  the  judgment  which  would  exhaust  the 
whole  purchase-money,  it  is  conceived  that  the  purchaser  might  safely 
pay  off  the  intervening  incumbrances,  and  take  the  legal  estate  from  the 
trustee.  The  judgment  creditors  in  such  a  case,  would  have  no  legal 
lien,  and  the  purchase-money  has  been  properly  applied. 

The  question,  hoiv/ar,  under  the  old  law,  the  lieu  of  the  judgment 
creditor  against  the  trust  estate  extended,  was  one  *of  conside-  ^^^^^jn 
rable  difl&culty,  and  the  authorities  could  only  be  reconciled  by  L  J 
the  aid  of  a  somewhat  subtle  distinction. 

A  judgment  creditor  might  have  come  into  a  court  of  equity  upon  two 
grounds.  First,  upon  a  ler/al  title  where  he  either  sought  to  remove  an 
impediment  to  the  execution  of  his  legal  deyit,  or,  after  the  death  of  the 
conusor,  sued  for  payment  of  his  debt  out  of  the  conusor's  personal  assets, 
and,  if  they  should  be  insufficient,  then  by  sale(i)  of  the  real  estate  :  or, 
secondly,  upon  an  cquitahle  elegit,  on  the  ground  that  he  had  no  legal 
lien,  and  therefore  could  have  no  legal  process. (?c) 

As  the  extent  of  relief  ought  in  both  these  cases  to  be  the  same,  and 

(0  Russell  V.  M'Culloch,  1  Kay  &  John.  313  :  and  see  Clare  v.  Wood,  4  ITaro, 
81.  But  by  18  &  19  Vict.  c.  15,  s.  11,  when  the  mortgagee  is  paid  off,  the  judg- 
ment against  him  ceases  to  bind  the  land. 

(w)  Robinson  v.  Hedger,  13  Jur.  846 ;  and  14  Jur.  784. 

(i')  An  elegit  would  at  law  give  the  possession  of  the  lands  till  the  satisfaction  of 
the  debt,  but  equity  assumes  the  jurisdiction  of  facilitating  the  remedy  bv  a  sale. 
See  Barnwell  v.  Ba'rnwell,  3  Ridg.  61 ;  O'Fallon  v.  Dillon,  2  Sch.  &  Lef  lo";  O'Gor- 
man  v.  Comyn,  lb.  139;  Stileman  v.  Ashdown,  2  Atk.  610;  but  see  Bedford  v. 
Leigh,  2  Dick.  709 ;  Neate  v.  Duke  of  Marlborough,  3  M.  &  C.  417. 

{id)  These  grounds  of  suit  still  subsist,  in  addition  to  that  conferred  by  the  ISih 
section  of  the  1  &  2  Vict.  c.  110,  giving  the  judgment  creditor  a  charge  in  equity. 


532  LEAYIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

the  court  never  attempted  to  take  a  difference,  the  authorities  determined 
upon  either  head  may  be  relied  upon  as  applicable  to  the  other.  The 
result  of  the  cases  upon  this  principle,  notwithstanding  an  early  authority 
|.^  _  to  the  contrary,(a;)  *was  that  a  judgment  creditor  could  sue  an 
L         J  equitable  elegit  of  a  moiety  only  of  a  trust  estate. (?/) 

The  grounds  of  the  doctrine  was  thus  delivered  by  Lord  Hardwicke  in 
the  leading  case  of  Stileman  v.  Ashdown  :(.~)  <<  The  judgment  affects 
the  laud,"  said  his  lordship,  "  as  it  is  bound  by  the  judgment.  Equity 
follows  the  law  in  this  case,  and  as  the  plaintiff  can  extend  only 
a  moiety  there,  he  shall  have  no  more  here.  Suppose  it  was  the 
case  of  a  hond  creditor;  he  might  have  an  action  of  debt  against 
the  heir,  and  judgment  against  him  upon  assets  descended,  and  this 
he  is  entitled  to  at  common  law,  for  it  is  the  debt  of  the  heir,  and 
the  action  is  in  the  debet  and  detinet ;  but  if  Vi  judgment  was  obtained 
against  the  ancestor,  a  scire  facias  could  not  be  brought  against  the  heir 
at  common  law,  because  the  heir  was  not  bound.  Before  the  Statute  of 
Westminister,  there  was  no  remedy  against  the  ancestor  in  his  lifetime 
upon  a  judgment  on  his  land  ;  and  it  is  that  statute  which  subjects  one 
moiety  thereof  to  the  judgment.     I'l  what  right  then  is  the  scire  facias 

(x)  Compton  v.  Corupton,  cited  in  Stileman  v.  Ashdown,  Amb.  15.  The  case 
as  stated  in  the  Kegistrar's  Book,  was  this :  Richard  confessed  a  judgment,  and 
died  intestate.  Henry,  his  son  and  heir,  filed  a  bill  against  the  administratrix  of 
his  father  and  the  persons  entitled  to  the  benefit  of  the  judgment,  praying  that  the 
debt  might  be  discharged  out  of  his  father's  personal  estate  to  the  relief  of  the 
lands.  Henry  died,  and  the  suit  was  revived  by  Hoby,  his  son  and  heir,  and  at 
the  hearing  it  was  decreed,  somewhat  unaccountably,  that  the  plaintiff  showl A  pay 
the  judgment.  Upon  this  Pigott,  the  party  interested  in  the  judgment,  filed  a  cross- 
bill against  the  plaintiff  in  the  former  suit  to  have  the  decree  carried  into  execu- 
tion, and  the  court  on  the  hearing  made  the  order  as  before.  Against  this  decree 
the  plaintiff  Hoby  appealed,  and  Lord  Keeper  Harcourt  then  directed  that  the  per- 
sonal estate  of  Richard  should  be  applied  in  the  first  instance,  and  that  Hoby 
should  not  h&  personally  charged  with  the  judgment  debt,  but  should  make  good 
the  same  so  far  only  as  any  rents  and  profits  of  the  real  estate  of  Richard  had  come 
to  his  hands  ;  but  in  case  such  personal  estate,  rents,  and  profits  should  fall  short 
of  the  judgment,  then  the  deficiency  should  be  made  good  "by  sale  of  the  whole 
real  assets  of  Richard  liable  to  the  judgment."  (Reg.  Lib.  A.  1711,  f  134.)  The 
authoritj'  of  this  case  cannot  however  have  much  weight,  for,  as  was  observed  by 
Lord  Hardwicke  (Stileman  v.  Ashdown,  Amb.  17,)  the  point  whether  the  whole 
or  a  moiety  should  be  sold  appears  not  to  have  been  discussed. 

(,y)  Stileman  v.  Ashdown,  2  Atk.  477,  608  ;  Rowe  v.  Bant,  Dick.  150  (as  cor- 
rected from  Reg.  Lib.,  the  case  was  as  follows  : — Rowe,  the  conusee  of  a  judgment 
confessed  by  one  Dingle,  deceased,  filed  a  bill  against  Bant,  the  executor  of  Dingle 
and  who  was  also  in  possession  of  Dingle's  real  estate  by  the  double  title  of  gran- 
tee in  Dingle's  lifetime  and  general  devisee  in  his  will,  praying  payment  of  the 
judgment  out  of  the  real  and  personal  estate  of  the  testator,  and  that  the  grant  to 
Bant  in  Dingle's  lifetime  might  be  declared  void,  as  against  the  judgment,  for  want 
of  consideration.  The  personal  estate  proved  insufficient,  and  thereupon  the  court 
ordered  a  sale  oi  one  moiety  of  the  real  estate  comprised  in  the  grant.  B.  1750,  f. 
427) ;  Barnwell  v.  Barnwell,  3  Ridg.  P.  C.  24 ;  O'Dowda  v.  O'Dowda,  2  Moll.  483; 
Anon,  case,  ib. ;  O'Gorman  v.  Comyn,  2  Sch.  and  Lef  137  ;  Burroughs  v.  Elton, 
1 1  Ves.  33  ;  Williamson  v.  Park,  2  Moll.  484  ;  Armstrong  v.  Walker,  ib.  In  O'Fal- 
lon  V.  Dillon,  2  Sch.  and  Lef.  13,  the  sale  of  the  estate  was  not  confined  to  a  moiety ; 
but  there  the  creditor  had  entered  up  two  judgments  the  same  tervi,  and  then  as 
both  judgments  were  of  the  same  date,  the  creditor  might  at  luu\  have  taken  both 
moieties  in  execution.     See  Attorney-General  v.  Andrew.  Hard.  23. 

{z)  2  Atk.  608. 


PROPERTIES  OF  CESTUI'S  QUE  TRUST  ESTATE.  533 

brought  against  the  heir  or  purchaser?  Why.  only  as  terre-tenant, [(i) 
and  by  virtue  of  the  statute.  I  thought  of  the  objection  myself,  that  a 
bond  creditor  would  be  in  a  better  situation  than  a  judgment  creditor; 
and  so  he  is,  for  as  soon  as  the  bond  debt  is  turned  *into  a  judg-  r*r>pQ-i 
ment,  it  is  extinct  against  the  ancestor,  and  the  creditor  cannot,  L  -I 
in  the  lifetime  of  the  ancestor,  bring  any  action  upon  the  bond  :  can  he 
then  bring  any  action  against  the  heir  after  it  is  entirely  extinct  1{h) 
But  still  he  obtains  a  great  advantage  by  a  judgment,  as  it  gives  him  an 
opportunity  of  binding  the  land  immediately,  and  likewise  gives  him  a 
preference  over  all  other  bond  creditors  ;  and  therefore  the  creditor  pre- 
fers this  real  advantage  to  a  precarious  one  of  assets  descending  upon  the 
heir  after  the  death  of  the  ancestor.  If  this  is  the  case  at  law,  what  is 
there  in  equity  to  better  his  case  ?  Why,  nothing  more  than  to  accele- 
rate the  payment  by  directing  a  sale  of  the  moiety,  and  not  let  the  judg- 
ment creditor  wait  till  he  has  been  paid  out  of  the  rents  and  profits ;  but 
equity  cannot  change  the  rights  of  parties." 

An  equitij  of  redemption  was,  however,  governed  by  a  very  different 
rule. 

If  A.,  seised  of  an  estate,  mortgaged  it  to  B.  in  fee,  and  then  con- 
fessed a  judgment  to  C,  it  was  clear  C.  had  a  lien  which  entitled  him  to 
redeem  B.  But  should  he  redeem  a  whole  or  a  moiety  ?  So  far  as  the 
judgment  creditor  had  any  claim  of  his  own,  a  moiety  only ;  but  as  B. 
could  not  be  compelled  to  part  with  the  smallest  fraction  of  the  estate  until 
he  had  been  satisfied  his  whole  debt,  C.  was  under  the  necessity  of  redeem- 
ing the  entirety.  Again,  when  C.  had  taken  a  transfer  of  the  security,  it 
followed,  that  as  mortgagee  with  a  judgment  against  the  mortgagor  he 
had  a  right  to  tack,  and  no  one  could  redeem  any  part  of  the  estate  out  of 
his  hands  until  payment,  not  only  of  the  original  mortgage  debt,  but 
also  of  the  judgment.  Thus  it  arose  from  a  kind  of  necessity,  and  not 
from  any  wanton  violation  of  principle,  that  in  the  instance  of  an  equity 
of  redemption  the  judgment  creditor  was  paid  by  a  sale  of  the  wlioh 
estate. (c) 

*Thus  in  Stileman  v.  Ashdown,((7)  Lord  Hardwicke,  at  the  r*QQj-i 
same  time  that  he  gave  the  judgment  creditor  a  moiety  only  of  L  -^ 
the  trust  estate,  ordered  a  sale  of  the  ivholc  of  the  lands  in  mortgage.if) 
So,  where  there  were  several  incumbrancers  by  judgment  upon  an  equity 
of  redemption,  and  the  court  decreed  a  sale,  the  first  judgment  creditor  was 
not  confined  to  a  moiety  of  the  estate,  but  the  common  decree  was,  that  the 

{a)  See  Harbert's  case,  .3  Re.  12  b;  Bowyer  v.  Eivitt,  Sir  W.  Jono?.  87;  Dyer, 
271,  a  pi.  25. 

{b)  Sir  A.  Hart,  alluding  to  this  point,  said,  "  The  courts  have  got  rid  of  Stile- 
man V.  Ashdown,  as  savouring  too  much  of  technicality."  Loiihy  v.  Dancer,  1 
Moll.  319.  But  Crispe  v.  Blake,  1  Ch.  Ca.  2.3,  had  decided  that  the  bond  was  ex- 
tinguished by  the  judgment,  and  accordingly  in  Barnwell  v.  Barnwell,  3  Ridg.  P. 
C.  24,  and  O'Gorman  v.  Comyn,  2  Sch.  k  Lef.  lot,  though  the  judgments  were 
jnccedcd  hij  bonds,  a  sale  of  ouh"  a  moiety  was  directed. 

{c)  Stonehewer  v.  Thompson,  2  Atk.  440;  Sish  v.  Hopkins.  Blunt's  Amb.  793. 

{d)  2  Atk.  477. 

(e)  Sir  A.  Hart,  not  observing  the  ground  of  the  di.-;tinrtion.  has  charged  Lord 
Hardwicke  with  inconsistency,  Leahy  v.  Dancer,  1  Moll.  322. 


534       LEWIN  ON  TUE  LAW  OF  TRUSTS,  ETC. 

incumbrancers  should  be  paid  their  full  demands  out  of  the  proceeds  of 

the  sale,  according  to  their  priority. (/)(1) 

There  is  one  species  of  interest  which,  though  bordering  closely  upon 
the  nature  of  an  equity  of  redemption,  yet  ought  perhaps  to  be  distin- 
guished from  it.  In  Tunstall  v.  Trappes,(^)  before  cited,  Trappes,  in 
1811,  appointed  an  estate  to  the  use  that  Davis  might  receive  an  annuity, 
and,  subject  thereto,  to  the  use  of  Withy  in  fee  upon  trust,  in  case  the 
annuity  should  be  in  arrear  for  six  months,  to  sell  the  premises,  and  out 
of  the  proceeds  to  purchase  an  annuity  of  the  same  amount  for  Davis, 
and  pay  the  surplus,  after  discharging  the  existing  incumbrances,  to 
Trappes ;  provided,  that  in  case  Trappes  should  be  desirous  of  repur- 
chasing the  annuity,  and  should  pay  the  price  to  Davis,  then  the  annuity 
should  cease,  and  Withy,  the  trustee,  should  reconvey.  In  1812, 
Trappes  confessed  a  judgment,  and  the  question  was,  whether  it  should 
affect  the  whole  or  only  a  moiety  of  the  estate  ;  and  Sir  L.  Shadwell,  on 
the  ground  that  a  judgment  creditor  might  redeem  the  entirety  of  lands 
in  mortgage,  held  that  the  lien  should  extend  to  the  whole.  Now,  there 
appears  to  be  this  distinction  between  an  equity  of  redemption  and  the 
case  just  mentioned.  In  the  former,  the  whole  interest  is  in  the  mort- 
r*«r9n  S^S^^  ^J  non-fulfilment  of  the  condition;  and  if  the  *judgment 
L  J  creditor  redeem  the  mortgagee,  and  then  the  mortgagor  come  to 
be  relieved  against  the  forfeiture,  the  court  will  impose  terms  upon  the 
mortgagor,  and  oblige  him  to  discharge  every  lien  upon  the  estate  before 
he  can  be  permitted  to  redeem  the  smallest  part.  But  in  Tunstall  v. 
Trappes  the  whole  interest  was  never  in  the  annuitant  either  at  law  or 
in  equity.  The  legal  estate  was  limited  to  a  third  person  in  fee,  and 
the  equitahle  interest  to  the  extent  of  securing  the  annuity  only  was  in 
trust  for  the  annuitant,  but  as  to  all  the  residue  was  in  trust  for  the 
grantor.  There  was  nothing  to  be  redeemed,  but  merely  a  trust  to  be 
executed.  The  judgment  creditor  might  take  an  assignment  of  the 
annuity,  but  he  had  no  right  to  tack  the  judgment :  the  grantor  could 
call  for  a  reconveyance  from  the  trustee  on  payment  of  the  price  agreed 
upon  for  the  annuity,  and  the  court  could  impose  no  terms,  for  no  favour 
was  asked. 

Is  the  judgment  creditor,  when  he  comes  into  equity  for  a  sale  of  the 
estate,  either  in  the  lifetime  of  the  conusor,  or  after  his  death,  obliged, 
before  the  jurisdiction  of  the  court  can  attach,  to  sue  out  an  actual 
elegit  f  If  the  judgment  be  a  legal  lien,  and  the  creditor  seek  to  remove 
some  impediment  to  the  legal  execution  of  it,  it  is  clear  he  must  first 
lay  a  foundation  for  the  interference  of  equity  by  suing  out  an  elegit  at 
law  ;(A)  and  the  same  rule  is  now  established  even  where  the  judgment 

(/)  Sharpe  v.  Earl  of  Scarborough,  4  Ves.  538 ;  the  cases  cited  ib.  541  ;  and 
see  Berrington  v.  Evans,  3  Y.  &  C.  384. 

{g)  3  Sim.  286,  see  300. 

(A)  See  Dillon  v.  Flasket,  2  Bligh,  N.  R.  239 ;  Neate  v.  Duke  of  Marlborough, 
3  M.  &  C.  407  ;  Mitford  on  Plead.  126,  4th  edit. 

(1)  It  has  been  ruled,  upon  a  similar  principle,  that,  where  freeholds  and  copy- 
holds are  blended  in  one  mortgage,  the  equity  of  redemption  of  the  whole  is  liable 
as  assets  to  a  bond  creditor,  though  copyholds  by  themselves  are  not  assets.  Acton 
V.  Peirce,  2  Vern.  480. 


PROPERTIES  OF  CESTUI'S  QUE  TRUST  ESTATE.  535 

is  merely  an  equitable  lien  ;{i\  but  the  elegit  need  not  be  returned  ;(/i:) 
and  where  the  trust  estates  were  in  three  counties  an  elegit  in  one  only 
was  held  sufficient.^/) 

When,  however,  the  interest  sought  to  be  aflfected  is  an  equitable 
chattel  real,  it  is  sufficient  to  sue  out  a  writ  o?  fieri  *facias.{in)  r^f^r-o-^ 
And  when  the  assistance  of  the  court  is  sought  in  favour  of  a  L  J 
county  court  judgment  against  an  equitable  chattel  real,  it  is  sufficient 
to  pursue  the  analogous  step  of  placing  a  writ  of  execution  in  the  hands 
of  the  high  bailiff,  pursuant  to  the  County  Court  x\ct.(«) 

Again,  it  seems  that  a  judgment  creditor  may  redeem  a  mortgage 
without  suing  out  an  elegit;  for  inasmuch  as  the  court  finds  the  creditor 
in  a  condition  to  acquire  a  power  over  the  estate  by  suing  out  the  writ, 
it  does  what  it  does  in  all  similar  cases,  it  gives  to  the  party  the  right  to 
come  in  and  redeem  other  incumbrancers  upon  the  property. (o) 

And  so  whether  the  judgment  be  legal  or  cquitahlr,  if  the  creditor 
file  his  bill  after  the  death  of  the  conusor  for  satisfaction  of  his  claim 
out  of  the  personal  assets,  and,  in  case  of  their  deficiency,  by  a  sale  of 
the  real  estate,(jj)  it  has  been  held  that  an  actual  elegit  is  not  an  essen- 
tial requisite.  The  observations  of  Lord  Fitzgibbon  upon  this  point 
appear  worthy  of  attention  :  "  An  objection/'  he  said,  "  has  been  made 
at  the  bar,  that  the  creditor's  bill  ought  not  to  be  entertained,  because 
he  did  not  revive  the  judgments  and  sue  out  elegits;  and  it  has  been 
asserted,  that  until  the  Judgment  has  heen  revived  against  the  heir  and 
terre-tenants  of  the  conusee,  caul  an  elegit  has  been  sued  forth,  a  court  of 
equity  will  not  entertain  a  bill  against  the  heir  and  executor  to  levy  the 
debt.  The  equity  upon  which  bills  of  this  nature  have  been  entertained, 
is  founded  on  the  Statute  of  Westminster,  and  has  been  adopted  no  less 
for  the  ease  of  the  creditor  in  levying  his  debt  with  expedition,  than  in 
mercy  to  the  representatives  of  the  debtor,  by  relieving  his  estate  from 
the  ruinous  expense  of  an  extent  at  law,  and  of  the  suits  which  might 
arise  in  consequence  of  it.  It  is  notorious  to  every  man  of  the  profes- 
sion, that  if  a  scire  facias  to  revive  a  judgment  against  the  heir  and 
terre-tenants  of  the  conusor  is  put  ioto  the  hands  of  a  solicitor  versed  in 
the  science  of  ^accumulating  costs,  he  will  be  enabled  to  charge  p^pp  i-i 
the  estate  with  costs  equal  to  the  debt,  if  it  be  not  considerable.  L  J 
If  the  terre-tenants  are  charged  unequally  with  payment  of  the  debt,  it 
lays  a  ground  for  fresh  suits  between  them  for  contribution,  and  if  the 

(i)  Neate  v.  Duke  of  Marlborough,  9  Sim.  60  ;  3  M.  &  C.  407 ;  but  see  Tunstall 
V.  Trappes,  3  Sim.  280 ;  RoUeston  v.  Morton,  1  Conn.  &  Laws.  257.  But  where 
the  creditor  sues  upon  the  equitable  charge  created  by  sect.  13  of  the  1  &  2  Vict, 
c.  110,  an  cleffit  is  not  necessary,  and  the  decree  will  be  for  sale.  See  Carlon  v. 
Farlar,  8  Beav.  525  ;  Footner  v.  Sturgis,  5  De  G.  &  Sm.  736;  Smith  v.  Hurst,  1 
Coll.  705;  10  Hare,  30;  Jones  v.  Bailey,  17  Beav.  582;  but  qua>re,  rightly  de- 
cided. 

(k)  Dillon  V.  Plasket,  2  Bligh,  N.  S.  239  ;  and  see  Campbel  Iv.  Farrell,  Rep.  t. 
Plunket,  388. 

(l)  Dillon  V.  Plasket,  2  Bl.  N.  S.  239. 

(m)  Gore  v.  Bowser,  3  Sm.  &  Giff.  1 ;  Smith  v.  Hurst,  10  Hare,  30. 

(n)  Bennett  v.  Powell,  3  Drewry,  326. 

(o)  Neate  v.  Duke  of  Marlborough,  3  M.  &  C.  41C,  per  Lord  Cottenham. 

(p)  Barnwall  v.  Barnwall,  3  Ridg.  P.  C.  24  ;  Neate  v.  Duke  of  Marlborough,  3 
M.  &  C.  416,  per  Lord  Cottenham. 


536  LEWIX    ON    THE    LAW    OF    TRUSTS,    ETC. 

creditor  levies  the  debt  by  extending  the  real  estate  of  the  debtor  when 
there  is  a  personal  fund  applicable  to  the  payment  of  it,  this  lays  a 
ground  for  a  suit  also  by  the  heir  against  the  executor  to  have  the  per- 
sonal estate  applied  to  reimburse  him ;  and  therefore  it  is  that  courts  of 
equity  have  in  this  country,  certainly  for  more  than  a  century,  enter- 
tained bills  in  the  first  instance  after  the  death  of  the  comisor  for  an 
account  of  his  real  and  personal  estate,  and  of  the  sum  due  for  principal, 
interest,  and  costs  on  the  foot  of  the  judgment. "(g') 

Thus  much  concerning  the  judgment  creditor's  equitable  remedy 
against  a  trust.  We  proceed  now  to  the  provision  in  the  Statute  of 
Frauds,(?-']  which  enabled  a  judgment  creditor  in  certain  cases  to  sue  a 
writ  of  execution  against  an  equitable  estate  at  Iau\ 

The  10th  section  enacted,  that  '<  it  should  be  lawful  for  the  sheriff,  or 
other  oflBcer,  to  whom  any  writ  or  precept  should  be  directed  at  the  suit 
of  any  person  upon  any  judgment  statute  or  recognizance,  to  deliver  exe- 
cution unto  the  party  in  that  behalf  suing  of  all  such  lands  and  here- 
ditaments as  any  other  person  or  persons  might  be  in  any  manner  of  wise 
seised  or  jiossessed  in  trust  for  the  party  against  whom  execution  was  so 
sued,  like  as  the  sheriff  or  other  offcer  might  or  ought  to  have  done,  if 
the  said  party  against  whom  execution  should  be  so  sued  had  been  seised 
of  such  lands  and  hereditaments  of  such  estate  as  they  were  seised  of  in 
trust  for  him  at  the  time  of  the  said  execution  sued." 

Upon  the  construction  of  this  enactment  the  following  points  were 
resolved : — 

1.  As  the  statute  spoke  only  of  lands,  &c.,  of  which  other  persons 
r*fir^n  ^^^'^  seised{s^  in  trust  for  the  debtor,  it  did  not  extend  *to  trusts 
L  -I  of  chattels  real  of  which  the  legal  proprietor  was  said  not  to  be 
seised,  hut  possessed.  (t\ 

2.  An  equity  of  redemption  was  not  within  the  terms  of  the  act.T?/) 

3.  A  hare  and  simple  trust  only  was  intended — not  one  of  a  compli- 
cated nature,  where  the  interests  of  other  parties  are  mixed  up  with  the 
debtor's  title. (r) 

4.  From  the  concluding  words,  "  like  as  the  sheriff  might  have  done, 
if  the  cestui  que  trust  had  been  seised  of  the  estate  whereof  other  per- 
sons be  seised  in  trust  for  him  at  the  time  of  the  execiition  sued,"  if, 
after  the  judgment  was  entered  up,  but  before  actual  execution,  the 
estate  had  been  disposed  of  to  a  pui'chaser,  so  that  when  execution  was 
sued  there  was  no  trust  for  the  debtor  in  esse,  in  that  case  the  words  of 
the  statute  had  failed  to  provide  a  remedy,  and  the  judgment  creditor 
could  not  be  put  in  possession. (w) 

The  question  was  much  discussed  whether  in  that  case,  though  the 

(q)  Barnwell  V.  Baruwell,  3  Ridg.  P.  C.  61.  (r)   29  Car.  2,  c.  3. 

(s)  In  the  first  part  of  the  clause  are  the  words  "  seised  or  possessed,''  but  after- 
wards, in  two  places,  there  occurs  the  word  "seised"  only. 

(t)  Lyster  v.  Dolland,  3  B.  C.  C.  478  ;  S.  C.  1  Yes.  jun.  431  ;  Scott  v.  Scholey, 
8  East,  467  ;  Metcalf  v.  Scholey,  2  B.  &  P.  461. 

(u)  Lyster  v.  Dolland,  Scott  v.  Scholey,  Metcalf  v.  Scholey,  ubi  supra ;  Burdon 
T.  Kennedy,  3  Atk.  739. 

(v)  Doe  V.  Greenhill,  4  B.  &  Aid.  684;  Harris  v.  Booker.  4  Bing.  96  :  Forth  v. 
Duke  of  Norfolk,  4  Mad.  504,  per  Sir  J.  Leach. 

(w)  Hunt  V.  Coles.  Com.  226;  Harris  v.  Pugh,  4  Bing.  335. 


PROPERTIES    OP    CESTUI'S    QUE    TRUST    ESTATE.     537 

judgment  creditor  could  not  prosecute  a  legal  execution,  he  might  not 
subject  the  purchaser,  if  affected  with  notice,  to  an  equitable  clcgit.{x) 
It  was  said,  that  as  there  was  no  execution  at  law  and  equity  followed 
the  law,  the  creditor  was  without  redress;  but  in  this  argument  the  prin- 
ciple that  equity  follows  the  law  seems  to  be  wrongly  applied.  A  judg- 
ment binds  a  legal  estate,  and,  as  equity  follows  the  law,  a  judgment  is 
therefore  in  equity  a  lien  upon  the  trust.  The  Statute  of  Frauds  intro- 
duced an  additional  remedy  by  enabling  the  judgment  creditor,  in  cer- 
tain cases,  to  take  legal  execution  of  a  trust.  But  affirmative  statutes 
do  not  abridge  the  common  law,(,y)  and  therefore  the  creation  of  a  legal 
remedy  in  certain  cases  provided  for  by  the  act  cannot  preclude  the  judg- 
ment creditor  from  *prosecuting  his  equitable  elegit  in  other  cases  r*pf»p-i 
for  which  the  statute  has  made  no  provision.  The  enactment  L  J 
was  clearly  meant  to  be  remedial,  but  the  doctrine  contended  for  would 
impress  on  it  a  restrictive  character,  and  convert  it  into  a  disabling  sta- 
tute. Lord  St.  Leonards  observes,  '<  The  difficulty  in  the  way  of  the 
relief  would  be,  that  no  instance  of  it  can  be  found  after  the  most  dili- 
gent search."  The  reason  probably  is,  that  judgments  have  only  in 
modern  times  been  held  to  bind  equitable  interests  at  all :  the  doctrine 
was  certainly  not  established  before  the  Statute  of  Frauds.  But  the  sys- 
tem of  trusts  has  from  that  period  downwards  been  gradually  maturing, 
and  the  principles  which  governed  uses,  and  were  thence  transferred  into 
trusts,  have  since  not  indeed  been  abandoned,  but  received  a  much  more 
enlarged  and  liberal  application.  Now  that  judgments  are  acknowledged 
to  be  liens  upon  equitable  interests,  the  consequence  must  necessarily 
follow,  that  a  purchaser  must  be  bound  by  notice  of  a  judgment,  as  he 
would  be  bound  by  notice  of  any  other  equitable  incumbrance. 

By  the  late  act  for  extending  the  remedies  of  creditors, (^)  it  is  enacted 
1.  By  sect.  11,  That  execution  at  laic  maybe  had  under  an  elegit  of  the 
whole  lands  freehold  and  copyhold,  of  which  the  debtor  was  seised  or 
possessed  at  law  or  in  equity,  or  over  which  he  had  a  disposing  power,(a) 
at  or  subsequently  to  the  entering  up  of  the  judgment.  2.  By  sect.  13, 
That  in  equity  a  judgment  shall  operate  as  a  charge  upon  the  whole  of 
the  lands  freehold  and  copyhold  of  which  the  debtor  was  seised  or  pos- 
sessed at  law  or  in  equity,  or  over  which  he  had  a  disposing  power,  at  or 
subsequently  to  the  entering  up  of  the  judgment,  with  a  proviso  that  the 
creditor  shall  not  sue  until  the  expiration  of  a  year  from  the  date  of  the 
judgment,(i)  and  that  the  protection  in  equity  of  purchasers  for  valuable 
consideration  without  notice  shall  not  be  disturbed.  3.  By  sect.  r*ggY-| 
18,  *That  decrees  and  orders  of  courts  of  eijuity,  rules  of  courts  L         J 

{x)  See  2  Vend,  and  Purch.  38G.  lOtli  ed. ;  Coote  ou  Mortg.  p.  71  ;  2  Powel, 
Mortg.  G20. 

(y)  Attorney-General  v.  Andrew,  Hard.  27;  2  lust.  472. 
(z)   1  &  2  V.  c.  110. 

(a)  A  trust  for  the  separate  use  of  a  married  woman  is  not  an  estate  over  which 
she  has  a  disposing  power  within  the  meaning  of  the  act;  Digb}'  v.  Irvine,  G  Ir. 
Eq.  Rep.  149.  Neither  is  the  power  of  the  settlor  to  defeat  a  voluntary  settlement 
by  means  of  the  27  Eliz.  c.  4,  a  disposing  power  within  the  Act  of  Vict.;  Beavan 
v.  Earl  of  0.\ford,  2  Jur.  N.  S.  121. 

(b)  See  Smith  v.  Hurst,  1  Coll.  705,  and  S.  C.  10  Hare.  43  :  Mackinnon  v.  Stew- 
art, 1  Sim.  X.  S.  7G,  p.  91. 


538  LEW  IX    ON    THE    LAW    OF    TKUSTS,    ETC. 

of  common  law,  kc,  whereby  any  sum  of  money,  or  any  costs,  charges, 
or  expenses  shall  be  payable  to  any  person,  shall  have  the  effect  of  judg- 
ments.(c)  But,  4.  By  sect.  19,  That  no  judgments,  decrees,  or  orders, 
shall  affect  real  estate  iy  virtue  of  the  act,  unless  and  until  they  have 
been  refistered  with  the  senior  master  of  the  Court  of  Common  Pleas. 

It  is  observable  upon  these  clauses,  that  an  equitahle  estate,  whether 
of  freehold  or  copyhold  tenure,  and  whether  of  freehold  or  leasehold 
interest,  and  without  any  restriction  to  the  time  of  execution  sued,  as  in 
the  10th  section  of  the  Statute  of  Frauds,  was  subjected  by  the  act  to 
execution  at  law  by  writ  of  elegit  (s.  11),  and  to  quasi  execution  in  equity 
by  way  of  charge  (s.  13).  In  the  latter  case  purchasers  without  notice 
were  expressly  protected  (s.  13),  but  in  the  former  case  not :  a  pur- 
chaser, therefore,  even  of  an  equitable  interest,  after  the  commencement 
of  the  act,  was  required  by  this  statute  to  search  the  registry  at  the 
common  pleas  for  judgments  entered  up  against  the  vendor;  and  that 
whether  before  or  subsequently  to  the  act,  for  the  time  of  entering  up 
the  judgments  was  immaterial,  provided  they  had  been  registered.  It 
may  be  thought  anomalous  and  inconsistent  that  a  purchaser  should  not 
be  protected  at  law  by  want  of  notice,  while  he  was  in  equity ;  but  the 
intention  of  the  legislature  probably  was,  in  giving  a  remedy  both  at  law 
and  in  equity,  not  to  disturb  the  principles  upon  which  the  respective 
courts  acted;  and  therefore  if  the  trust  was  a^j?am  one,  and  so  amena- 
ble to  a  legal  elegit,  the  judgment  creditor  might  take  the  lands  in  exe- 
cution even  against  a  purchaser  without  notice ;  but  if  the  trust  was  so 
complicated  as  to  oblige  him  to  apply  to  a  court  of  equity,  and  treat  the 
judgment  as  a  charge,  the  court  by  the  act  was  not  to  disregard  its  esta- 
blished rules,  but,  as  in  all  other  cases,  was  to  protect  a  purchaser  with- 
out notice. 

„„„  *Afterwards  another  statute  was  passed  (2  &  3  V.  c.  11,)  by 
L  '  -I  which  it  was  enacted, — 1.  By  section  2,  that  no  judgment  what- 
soever should  affect  any  lands,  tenements,  or  hereditaments  as  to  purcha- 
sers, mortgagees,  or  creditors,  unless  previously  registered  at  the  common 
pleas,  according  to  the  provisions  of  the  act  1  &  2  V.  c.  110.  2.  By 
section  4,  that  all  judgments,  decrees,  rules,  and  orders,  registered,  or  to 
be  registered,  at  the  common  pleas  according  to  the  provisions  of  the  act 

1  &  2  V.  c.  110,  should  at  the  expiration  of  five  years,  be  null  and  void 
against  lands,  tenements,  and  hereditaments,  as  to  purchasers,  mortga- 
gees, or  creditors,(d\  unless  they  should  have  again  been  registered  in  the 
common  pleas  within  five  years  before  the  right,  title,  estate,  or  interest 

(c)  A  decree  for  an  account  merely  is  not  within  the  section;  Chadwick  v.  Holt, 

2  Jur.  N.  S.  918.  Neither  is  a  rule  of  a  court  of  common  law  which  does  not 
specify  the  sum  to  be  paid;  Jones  v.  Williams,  11  Ad.  &  Ell.  175  ;  Doe  v.  Amey. 
8  M.  &  W.  565  ;  though,  as  respects  costs,  the  case  is  different;  Jones  v.  Williams, 
8  M.  &  W.  349  ;  Doe  v.  Barrell,  10  Q.  B.  Eep.  565. 

(d)  These  words  mean  purchasers,  &c.,  becoming  such  after  the  omission  to  re- 
register, so  that,  if  A.  and  B.  be  respectively  first  and  second  judgment  creditors 
who  both  duly  register,  A.  does  not,  by  subsequently  omitting  to  re-register,  lose 
his  priority  over  B.;  Eeavan  v.  Lord  Oxford,  1  Jur.  N.  S.  1121 ;  and  see  Simpson 
V.  Morley,  1  Kay  &  J.  71  ;  Beavan  v.  Earl  of  Oxford,  now  reported,  6  De  Gex,  M. 
&  G.  492.' 


PROPERTIES    OF    CESTUI'S    QUE    TRUST    ESTATE.     539 

of  such  purchasers,  mortgagees,  or  creditors  accrued. (e)  3.  By  section 
5,  that  as  against  purchasers  and  mortgagees  iviihout  notice,  no  judgment, 
decree,  or  order,  should  have  a  greater  effect  than  a  judgment  would 
have  had  against  such  purchaser  or  mortgagee  before  the  passing  of  1  & 
2  V.  c.  110.  By  virtue  of  these  clauses  the  execution  that  might  under 
the  former  statute  have  been  taken  out  at  law  against  an  equitable  interest 
in  the  hands  of  a  purchaser  without  notice  was,  in  common  with  every 
other  advantage  given  by  the  former  statute  against  such  purchaser,  re- 
called,(/)  and  a  purchaser  was  not  required  to  carry  his  search  back  beyond 
the  period  of  five  years. 

A  singular  result  of  the  5th  section  is,  that  in  the  occasional,  though 
rarely  occurring  cases  of  a  purchase  or  mortgage  without  notice  of  a  pre- 
viously registered  judgment,  the  old  law,  as  it  existed  before  the  1  &  2 
Yict.  c.  110,  must  be  resorted  to  for  guidance.  It  is  therefore  impossi- 
ble to  treat  the  old  law  respecting  judgments  as  obsolete. 

This  act,  however,  still  left  open  the  question  whether  by  analogy  to 
the  cases  under  the  registry  acts  a  purchaser;  mortgagee,  or  creditor,  if 
he  had  actual  notice  of  an  unregistered  *judgment,  was  not  bound  rji^p/^Qn 
by  it ;  and  a  subsequent  act,  3  &  4  V.  c.  82,  was  passed  to  obvi-  L  -■ 
ate  this  objection.  It  was  thereby  enacted,  by  the  second  section,  that 
no  judgment,  decree,  order,  or  rule  should,  hy  virtue  of  the  said  act  (1 
&  2  V.  c.  110,)  affect  any  lands  at  law  or  in  equity  as  to  purchasers, 
mortgagees,  or  creditors,  until  registration^^)  under  the  said  act  at  the 
common  pleas,  any  notice  of  such  judgment,  decree,  order,  or  rule  to  any 
such  purchaser,  mortgagee,  or  creditor,  in  anywise  notwithstanding. 

It  being,  however,  doubted  whether  this  act  protected  a  purchaser, 
mortgagee,  or  creditor  from  the  effect  of  notice  as  to  any  remedy  against 
him  which  the  judgment  creditor  had  before,  independently  of  the  1  & 
2  Y.  c.  110,  or  whether  its  effect  was  not  limited  to  protection  against 
the  additional  remedy  given  to  the  judgment  creditor  by  that  act,(7i)  it 
was  in  order  to  obviate  this  inconvenience,  enacted  generally,  by  the 
18  &  19  V.  c.  15,  s.  4,  that  no  judgment,  decree,  &c.,  which  might  be 
registered  under  the  1  &  2  Vict.  c.  110,  should  affect  any  lands,  &c.,  at 
law  or  in  equity,  as  to  purchasers,  mortgagees,  or  creditors,  unless  and 
until  the  memorandum,  &c.,  should  have  been  left  with  the  proper  officer, 
any  notice  of  any  such  judgment,  decree,  &c.,  to  any  such  purchaser, 
mortgagee,  or  creditor,  in  any  wise  notwithstanding. 

It  has  been  held  under  the  acts  extending  the  remedies  of  the  judg- 
ment creditor,  that  as  to  equitable  interests  they  are  to  receive  the  same 
construction  as  the  Statute  of  Frauds,  and  consequently  that  simple  trusts 
only  can  be  taken  in  execution  at  law.f/) 

The  14th  section  of  the  1  &  2  Yict.  introducing  a  new  species  of  exe- 

(e)  And  see  18  &  19  Vic.  c.  15,  s.  6.     (/)  Westbrookv.  Blythe,  3  Ell.  &  BI.  737 

{g)  The  framer  of  this  act  appears  either  to  have  overlooked,  or  to  have  been 
ignorant  of  the  intermediate  act  of  2  &  3  Yict.  c.  11,  and  to  have  left  it  doubtful 
whether  re-registration  within  five  years  was  necessary  to  exclude  the  title  of  a 
purchaser  with  notice.  This  doubt  is  now  set  at  rest  by  sect.  5  of  the  18  &  19 
Vict.  c.  15. 

(h)  See  Beere  v.  Head,  3  Jo.  &  Lat.  340. 

(j)  Digby  V.  Irvine,  6  Ir.  Eq.  Rep.  149. 


540  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

cution  against  stock  and  shares  in  public  funds  and  public  companies, 
deserves  a  separate  consideration.  By  that  section  it  was  enacted  that 
if  any  person  against  whom  *any  judgment^/,-)  should  have  been 
L  -I  entered  up  in  any  of  her  majesty's  superior  courts  at  Westminster, 
should  have  any  government  stock,  funds,  or  annuities,  or  any  stock  or 
shares  of  or  in  any  company  in  England,  standing  in  his  name  in  his 
own  right,  or  in  the  name  of  any  lyet&on  In  trust  for  Mm,{J)  it  should  be 
lawful  for  the  judge  of  one  of  the  superior  courts,  on  the  application  of 
any  judgment  creditor,  to  order  that  such  stock,  &c.,  should  stand  charged 
with  the  payment  of  the  amount  for  which  judgment  should  have  been 
recovered,  and  such  order  should  entitle  the  judgment  creditor  to  all 
such  remedies  as  he  would  have  been  entitled  to  if  such  charges  had 
been  made  in  his  favour  by  the  judgment  debtor,  provided  that  no  pro- 
ceedings should  be  taken  to  have  the  benefit  of  such  charge  until  after 
the  expiration  of  sis  calendar  months  from  the  date  of  such  order ;  and 
by  the  next  following  section  of  the  act  it  is  provided  that  the  order  of  the 
judge  shall  be  ex  parte  in  the  first  instance,  and  on  notice  to  the  bank  or  com- 
pany shall  operate  as  a  distrinyas,  and  that  no  disposition  of  the  judgment 
debtor  in  the  mean  time  shall  be  valid  as  against  the  judgment  creditor. 

The  leading  points  decided  and  discussed  with  reference  to  this  new 
species  of  execution  will  be  shortly  adverted  to. 

1.  In  the  ordinary  case  of  a  judgment  at  law,  the  application  for  the 
charging  order  must  be  made  to  one  of  the  common  law  judges,  even  though 
the  stock  to  be  charged  be  standing  in  the  name  of  the  accountant-gene- 
ral of  the  Court  of  Chancery. (;?i)  But  where  a  charging  order  is  to  be 
made  in  furtherance  of  a  decree  of  the  Court  of  Chancery,  it  will  properly 
be  made  by  a  judge  of  the  Court  of  Chancery. (?A 

2.  Where  stock  or  funds  are  vested  in  trustees,  and  a  judgment  debtor 
appears  to  be  interested  therein,  the  charging  order  will  be  made  at  law, 
so  as  to  affect  the  interest  of  the  judgment  debtor,  whatever  it  may  be, 
r^p-i-i  leaving  it  to  the  trustees,  *if  the  precise  amount  of  the  debtor's 
L  -I  interest  is  not  svifl&ciently  defined,  to  say  they  will  not  act  except 
under  the  direction  of  the  Court  of  Chancery. (o) 

3.  Where  a  charging  order  is  made  upon  the  partial  interest  of  a 
cestui  que  trust  in  stock  or  shares,  the  bank  or  public  company  whose 
stock  or  shares  are  affected  by  the  charging  order,  is  not  concerned  with 
questions  arising  between  the  judgment  creditor  and  other  persons  in- 
terested in  the  trust  fund,  but  is  bound,  in  like  manner  as  before  the 
charging  order,  to  pay  the  dividends  to  the  trustees.(p) 

4.  The  proviso  at  the  end  of  the  14th  section,  forbidding  proceedings 
until  after  six  calendar  months,  applies  only  to  proceedings  for  enforcing 
immediate  payment  of  the  debt  by  realizing  the  security,  and  does  not 

(k)  Extended  to  Decrees,  &c.,  by  sect.  18. 

(l)  By  the  3  &  4  Vict.  c.  82,  s.  1,  the  property  intended  to  be  embraced  by  this 
section  is  further  defined. 

(m)  Hulkes  v.  Day,  10  Sim.  41. 

(«)  Stanley  v.  Bond,  7  Beav.  386  ;  Westby  v.  Westby,  5  De  G.  &  Sm.  516  ; 
Wells  V.  Gibbs,  22  Beav.  204. 

(o)  Fowler  v.  Churchill,  11  M.  &  W.  57. 

(j>)  Churchill  v.  Bank  of  England,  11  M.  &  W^  323. 


PROPERTIES    OF    CESTUI'S    QUE    TRUST    ESTATE.     541 

prevent  the  judgment  creditor  from  taking  steps  to  prevent  the  security 
given  him  by  the  statute  from  being  in  the  mean  time  defeated  or  dimi- 
nished. Thus,  where  the  funds  are  standing  in  the  name  of  the  account- 
ant-general, the  judgment  creditor  may,  within  the  six  months,  apply 
for  a  stop  order  to  restrain  the  debtor  from  receiving  dividends  accruing 
within  the  six  months.  (5) 

5.  The  question  as  to  the  precise  effect  of  the  charge  obtained  under 
a  charging  order,  in  reference  to  the  claims  of  other  incumbrancers  on 
the  trust  fund,  has  been  the  subject  of  much  difference  of  opinion.  lu 
a  late  case,  where  stock  was  vested  in  trustees,  and  A.,  having  a  bene- 
ficial interest  therein,  charged  that  interest  in  favour  of  B.,  and  subse- 
quently C.  recovered  judgment  against  A.,  obtained  a  charging  order  on 
A.'s  interest,  and,  before  any  notice  given  by  B.,  gave  notice  to  the 
trustees  of  his  having  obtained  the  charging  order,  it  was  held  by  three 
judges  of  the  Court  of  Queen's  Bench,  Lord  Campbell,  C.  J.,  Wight- 
man  &  Crompton,  J.  J.,  (Erie,  J.,  dissentiente,\  that  C,  the  judgment 
creditor,  was  entitled  to  priority  over  B.(r)  This  decision  has  been 
much  criticised.  It  is  opposed  to  the  analogous  decisions  on  the  r-^p.jn-, 
*llth  and  loth  sections  of  the  act,(s)  and  it  may  safely  be  said,  L  J 
in  the  words  of  high  legal  authority,  that  the  opinion  of  the  single  judge 
seems  to  be  the  correct  one.(^) 

The  law  as  to  priority  of  judgments  in  the  case  of  lands  lying  in  a 
register  county  is,  by  the  combined  effects  of  the  County  Registry  Acts 
and  of  the  Acts  of  the  Queen  before  referred  to,  in  a  singular  position. 

It  is  clearly  settled  that  the  County  Register  Acts  are  still  in  force, 
and  consequently  that,  in  order  to  give  priority  to  a  judgment  creditor 
over  a  subsequent  purchaser  or  mortgagee  icithout  notice,  his  judgment 
must  be  registered  both  in  the  county  register  and  in  the  common  pleas, 
before  the  completion  of  the  purchase  or  mortgage. (?«)  And  as  between 
two  judgment  creditors,  having  no  notice  of  each  other's  claim,  the  one 
who  first  completes  his  registry  in  both  the  county  registry  and  the  com- 
mon pleas,  obtains  precedence. (i-) 

Where  the  subsequent  purchaser  or  mortgagee  lias  notice  of  a  prior 
judgment,  the  question  will  be,  whether  the  judgment  was  registered  at 
the  common  pleas  before  the  completion  of  the  purchase. or  mortgage, 
since,  as  we  have  before  seen,  unless  so  registered  it  cannot  bind,  not- 
loithstandinrj  the  notice.  But  if  duly  registered  in  the  common  pleas, 
then,  according  to  the  old  decisions,  notice  to  the  purchaser  or  mortgagee 
will,  in  equitij,  though  not  at  law,  supply  the  want  of  registration  in  the 
county,  (if;) 

It  is  difficult,  however,  to  reconcile  the  expressions  with  reference  to 

{q)  Watts  v.  Jefferyes,  3  Mac.  &  Gor.  372;  and  see  Bristed  v.  'Wilkiiis,  3  Hare, 
235 ;  Wells  v.  Gibbs,  22  Beav.  204. 

(r)  Watts  V.  Porter,  3  Ell.  &  Bl.  743. 

(s)  Whitworth  v.  Gaugain.  3  Hare,  416,  1  Phil.  728;  Beavan  t.  Earl  of  Oxford, 
2  Jiir.  N.  S.  121  ;  Kiuderley  v.  Jcrvis,  22  Beav.  1. 

(/)  Vend,  and  Pur.,  13th  edit.  p.  430,  note  (I). 

(«)  Westbrook  v.  Blythe,  3  Ell.  &  Bl.  737. 

\v)  Hughes  V.  Lumley,  4  Ell.  &  Bl.  274. 

(?<-)  Tunstall  v.  Trappcs,  3  Sim.  301  :  Davis  v.  Earl  of  Strathmore,  16  Ves.  427. 

April,  1858.— 35 


542  LEW  IN    ON    THE    LAAV    OF    TRUSTS,    ETC. 

this  subject  contained  in  a  late  judgment  of  the  present  lord  chancellor 
(when  vice-chancellor)  with  the  older  cases. (;r) 


[*673]  ^SECTION  VII. 

OF   EXTENTS   FROM   THE   CROWN. 

A  trust  whether  of  a  term  or  of  a  freehold,  is  liable  to  an  extent  from 
the  crown  ;(y)  and  this  not  by  the  effect  of  any  legislative  enactment,  but 
per  cursum  scaccarii  at  common  law.(2;)  The  words  of  the  writ  issued 
to  the  sheriff  are  to  hold  inquest  of  the  lands  whereof  the  debtor,  not 
seisifus  fuit,  but  haliiit  vel  seisitus  fuit,  and  a  person  may  be  said  to 
have  lands,  when  by  subpoena  in  chancery  he  may  exercise  any  dominion 
over  them. (a) 

At  common  law  the  extent  of  the  crown  did  not  authorize  a  sale  of  the 
lands,  but  only  the  perception  of  the  rents  and  profits,  until  the  amount 
of  the  debt  was  levied  ;(i)  this  defect  was  supplied  partially  by  a  statute 
of  Elizabeth,(c)  and  more  effectually  by  the  25  G.  3,  c.  35.  It  is  by  the 
latter  statute  enacted,  that  ''  it  shall  be  lawful  for  his  majesty's  court  of 
exchequer,  and  the  same  court  is  thereby  authorized,  on  the  application 
of  his  majesty's  attorney-general(«i)  in  a  summary  way  by  motion[e)  to 
the  same  court,  to  order  that  the  right,  title,  estate,  and  interest  of  any 
debtor  to  his  majesty,  his  heirs  and  successors,  and  the  right,  title,  estate, 
and  interest  of  the  heirs  and  assigns  of  such  debtor,  which  have  been  or 
shall  be  extended  under  and  by  virtue  of  any  extent  or  diem  clausif 
extremum,  shall  be  sold  as  the  court  shall  direct,  and  the  conveyance 
shall  be  made  by  his  majesty's  remembrancer  in  the  said  court  of  exche- 
quer  or  his  deputy,  *under  the  direction  of  the  said  court,  by  a 
L         -»  deed  of  bargain  and  sale  to  be  inrolled  in  the  said  court." 

By  the  effect  of  this  enactment,  a  trust  or  equity  of  redemption(/)  of 
a  crown  debtor  may  now  be  sold  upon  summary  application  to  the  Court 
of  Exchequer  by  motion. 


SECTION  VIII. 

OF   FORFEITURE. 

A  trust  of  lands  is  not  forfeitable  at  common  law  for  attainder  either 
of  treason  or  felony  5(5')  for  forfeiture  works  only  upon  tenure,  and  a  trust 

(x)  Johnson  v.  Holdsworth,  1  Sim.  N.  S.  106. 

(y)  King  T.  Lambe,  M'Clel.  422,  per  Sir  W.  Alexander ;  Chirton's  case,  Dyer, 
160  a;  S.  C.  cited  Sir  E.  Coke's  case,  Godb.  293;  the  cases  cited  Id.  294 ;  Id.  298  ; 
Babington's  case,  cited  Id.  299;  King  v.  Smith,  Vend.  &  Purch.  Append.  No.  xv  ; 
1 1th  ed.,  per  Ch.  Baron  Macdonald. 

(z)  Attorney-General  v.  Sands,  Hard.  495,  per  Lord  Hale. 

(a)  See  Sir  E.  Coke's  case,  Godb.  294. 

(6)  Rex  T.  Blunt,  2  Y.  &  J.  122,  per  Baron  HuUock. 

(c)  13  Eliz.  c.  4.  {d)  See  Rex  v.  Bulkeley,  1  Y.  &  J.  256. 

(e)  See  Rex  v.  Blunt,  2  Y.  &  J.  120.  (/)  King  v.  De  la  Motte,  Forr.  162. 

{g)  Attorney-General  v.  Sands,  Hard.  495,  per  Lord  Hale ;  1  Hale's  P.  C.  247  ; 
Jeuk.  190. 


PROPERTIES  OF  CESTUI'S  QUE  TRUST  ESTATE.  543 

is  holden  of  nobody.  The  ground  of  the  forfeiture  is,  that  all  estates  are 
upon  condition  of  duty  and  fidelity  to  the  lord,  and  upon  breach  of  alle- 
giance they  return  to  the  king,  from  whom  they  originally  proceeded. (/i) 

The  exemption  of  the  use  from  forfeiture  was  remedied  in  the  ease  of 
treason,  by  the  26  H.  8,  c.  13,  s.  5,  whereby  it  was  enacted,  that  "every 
offender  convicted  of  high  treason  hj  i:)rescntment,  confession,  or  process 
of  outlwwry,  according  to  the  due  course  and  custom  of  the  common  laws 
of  the  realm,  should  forfeit  to  the  king  all  such  lands,  &c.,  which  such 
offender  should  have  of  any  estate  of  inheritance  in  use  m  possession T 

The  following  year  was  passed  the  27  H.  8,  by  which  uses  were 
abolished,  and,  as  the  trust  which  grew  up  in  the  place  of  the  use  was 
held  to  be  an  interest  sxd  generis,  and  not  within  reach  of  the  statutes 
directed  against  uses,  the  legislature  was  again  called  upon  to  interpose 
some  special  enactment  to  remedy  the  defect. 

The  33  H.  8,  c.  20,  s.  2,  declared,  that  "if  any  person  or  persons 
should  be  attainted  of  high  treason  by  the  course  of  the  common  laics  or 
statutes  of  the  realm,  every  such  attainder  *by  the  common  law(^i\  r-^r^^r-, 
should  be  of  as  good  strength,  value,  force,  and  effect,  as  if  it  L  J 
had  been  done  by  authority  of  parliament;  and  that  the  king's  majesty, 
his  heirs  and  successors,  should  have  as  much  benefit  and  advantage  by 
such  attainder,  as  well  of  itses,  rights,  entries,  conditions,  as  possessions, 
reversions,  remainders,  and  all  other  things,  as  if  it  had  been  done  and 
declared  by  authority  of  parliament,  and  should  be  deemed  and  adjudged 
in  actual  and  real  possession  of  the  lands,  tenements,  hereditaments, 
uses,  goods,  chattels,  and  all  other  things  of  the  offenders  so  attainted, 
which  his  highness  ought  lawfully  to  have,  and  which  they,  so  being 
attainted,  ought  or  might  lawfully  lose  and  forfeit,  if  the  attainder  had 
been  done  by  authority  of  parliament,  without  any  office  or  inquisition 
to  he  found  of  the  same." 

Notwithstanding  this  statute,  it  was  held  in  King  v.  Daccombe,(^) 
and  is  said  to  have  been  also  resolved  in  Abington's  case  that  the  trust  of 
a  freehold  was  not  forfeited  upon  attainder  of  treason  ;  and  it  has  been 
remarked,  that  this  doctrine  "  may  be  thought  to  be  founded  on  reason, 
because  it  is  not  pretended  that  the  statute  of  26  H.  8,  can  embrace  trusts 
which  have  succeeded  to  uses,  and  it  does  not  appear  to  have  been  the 
intention  of  the  33  H.  8,  to  create  a  forfeiture  of  any  equitable  estates 
which  has  sprung  up  since  the  former  act.  The  statute  had  other  ob- 
jects."(/) 

To  understand  the  scope  of  the  enactment  it  must  be  observed, — 1. 
That  previously  to  the  33  H.  8,  it  was  only  in  the  case  of  a  person  attainted 
by  act  of  parliament,  and  then  by  a  special  proviso,  that  the  king  was 
put  in  immediate  possession  of  the  offender's  lands,  for  in  attainders  by 
ordinary  course  of  law,  whether  by  common  law  or  under  a  statute,  the 

(A)  Gilb.  on  Uses,  38. 

(i)  This  includes  the  general  statutes  of  the  realm,  as  opposed  to  a  special  act 
attainting  a  particular  individual. 

(k)  Cro.  Jac.  512. 

(l)  Gilb.  on  Uses,  by  Lord  St.  Leonards,  78,  note  9;  and  see  Burgess  r.Wheate, 
1  Ed.  221.  ' 


544       LEWIX  ON  TUB  LAW  OF  TRUSTS,  ETC. 

king  was  not  in  possession  until  office  found.  2.  That  the  26  H.  8,  had 
extended  the  forfeiture  to  lands  in  use  or  possession,  but  not  to  rights, 
entries  or  conditions  ;  and  now  that  the  27  H.  8,  had  passed,  the  26  H.  8, 
was  not  even  appUcable  to  uses,  or,  as  they  were  henceforth  to  be  called, 
trusts.  3.  That  the  *26  H.  8,  had  embraced  attainders  hj2:>resent- 
L  -I  ment,  confession,  verdict,  or  process  of  outhncry,  but  had  omitted 
other  cases,  as  where  the  offender  stood  mute.  The  intention  of  the  legis- 
lature then,  in  passing  the  33  H.  8,  was,  as  resolved  in  Dowtie's  case,(m) — 

1.  To  vest  the  actual  possession  in  the  king  by  the  attainder  icithout  office  ; 

2.  To  extend  the  forfeiture  to  rights,  entries,  conditions,  &c.,  which  had 
hitherto  not  been  affected  by  attainder;  and,  3.  To  apply  the  statutory 
provisions  to  all  cases  of  attainder,  including  those  which  the  26  H.  8,  had 
accidentally  omitted. 

Assuming  the  act  to  have  had  a  remedial  scope,  can  it  be  supposed, 
that,  when  "rights,  entries,  and  conditions,"  were,  for  the  first  time, 
made  forfeitable  by  virtue  of  this  enactment,  the  word  "  uses,"  which 
occupies  the  first  place  in  the  series,  should  have  been  inserted  as  mere 
surplusage,  remembering  that  uses,  by  having  been  turned  into  posses- 
sions by  the  27  H.  8,  had  escaped  the  forfeiture  imposed  upon  them  by 
the  26  H.  8  ?  The  insertion  of  the  word  "  uses"  can  be  no  argument  that 
''trusts"  were  not  intended,  for  at  that  day  "uses"  and  "trusts"  were 
not  as  now  contradistinguished,  but  were  employed  indifferently,  as  terms 
perfectly  synonymous. 

In  support  of  this  reasoning  may  be  cited  the  opinions  expressed  by 
Baron  Turner  and  Lord  Hale,  in  the  well-considered  case  of  Attorney- 
General  V.  Sands. (n)  And  Lord  Hale  afterwards  recurs  to  the  subject 
in  his  pleas  of  the  crown, (o)  and  argues  the  point  there  with  considerable 
strength  of  reasoning  : — "  By  the  statute  of  27  H.  8,"  he  says,  "  all  uses 
were  drowned  in  the  land ;  but  there  have  succeeded  certain  equitable 
interests  called  trusts,  which  differ  not  in  substance  from  uses;  nay,  by 
that  very  statute  they  come  under  the  same  name,  viz.,  uses  or  trusts. 
By  the  statute  33  H.  8,  there  is  a  special  clause  that  the  person  attainted 
shall  forfeit  all  '  uses  ;'  and  what  other  uses  there  could  be  at  the  making 
of  the  statute  33  H.  8,  but  only  trusts  such  as  are  now  in  practice  and 
retained  in  chancery,  I  know  not.  It  was  agreed  in  the  Earl  of  Somer- 
P^^---,  set's  case,  and  so  resolved  *in  Abington's  case,  that  a  trust  of  a 
L  -I  freehold  was  not  forfeited  by  attainder  of  treason.  But  how  this 
resolution  in  Abington's  ease  can  stand  with  the  statute  of  33  H. 
8,  I  see  not ;  for  certainly  the  uses  there  mentioned  could  be  no  other 
than  trusts;  and  therefore  the  equity  or  trust  itself,  in  cases  of  attain- 
der of  treason,  seems  forfeited  by  the  statute,  though  possibly  the  land 
itself  he  not  in  the  king."(jj) 

Equities  of  redemption  appear  to  be  forfeitable  for  attainder  of  treason 

(m)  3  Re.  9,  b.  («)  Hard.  495 ;  S.  C.  Nels.  131 ;  S.  C.  Freem.  130. 

(o)  1  P.  C.  248. 

{p)  In  Attorney-General  v.  Sands,  it  was  laid  down,  according  to  Nelson's 
report  (p.  131.)  that  the  estate  was  executed  in  the  king  by  force  of  the  statute; 
but,  according  to  Freeman  (p.  130,)  that  the  estate  was  to  be  executed  in  the 
king  by  a  court  of  equity.     Id.  qu. 


PROPERTIES    OF    CESTUI'S    QUE    TRUST    ESTATE.     545 

under  the  33  H.  8  -j^q)  for  the  statute  has  enumerated  conditlom,  and 
the  interest  of  the  mortgagor  is  a  condition  which,  though  broken  at  law, 
is  saved  whole  to  him  in  a  court  of  equity. 

A  trust  in  favour  of  an  alien  is  forfeitable  to  the  crown  without  statute 
on  the  principle  of  public  poUcT/ ;  for  at  law  an  alien  has  no  capacity  to 
purchase  lands,  lest  the  realm  should  be  impoverished,  if  the  revenues 
might  be  transported  into  foreign  countries,  and  put  in  subjection  under 
a  foreign  prince  ;(r)  and  if  an  alien  were  allowed  to  receive  the  rents 
and  profits  of  lands  in  equity,  the  mischief  would  be  the  same.  How- 
ever, the  legal  estate  is  not  forfeited,  but  the  king  must  prosecute  his 
right  by  siihpa^na  in  the  Court  of  Chancery  •.{s\  and  this  he  may  do  with- 
out any  office  found  or  inquisition  taken. (/) 

Trusts  of  cJiatfels,  whether  real  or  personal,  were  always  deemed  for- 
feitable to  the  crown ;(«)  and  if  a  term  be  in  trust  for  the  wife  of  the 
felon,  but  not  for  her  separate  use,  it  seems  the  trust  shall  be  affected  by 
the  forfeiture  of  the  husband. (?')  But  in  these  cases  the  forfeiture  reaches 
not  to  the  chattel  *itself,  but  merely  entitles  the  king  to  sue  a  ^^^„„ 
suhjjoena  in  equity. («•)  L         J 

At  law  a  tenant  for  life  may,  by  certain  tortious  acts,  as  by  a  feoffment 
of  the  fee  simple,  forfeit  his  estate  to  the  remainderman  ;(x)  but  if  an 
equitable  tenant  for  life  affect  to  dispose  of  the  equitable  fee,  no  for- 
feiture is  incurred,  for  nothing  passes  beyond  the  grantor's  actual  inte- 
rest, (y) 

SECTION  IX. 

OF    ESCHEAT. 

A  trust  in  fee  of  lands  is  not  subject  to  escheat. (,t)  This  was  deter- 
mined in  the  great  ease  of  Burgess  v.  Wheate,(«)  before  Lord  Northing- 
ton,  assisted  by  Lord  Mansfield  and  Sir  T.  Clarke.  The  arguments  of 
these  eminent  judges,  too  long  for  insertion  in  this  place,  are  replete  with 
learning,  and  will  amply  repay  a  very  careful  perusal  :  it  must  be  men- 

(q)  Anon,  case,  cited  Reeve  v.  Attorney-General,  2  Atk.  223. 

(r)  See  Holland's  case,  Styl.  21 ;  Collingwood  v.  Pace,  0.  Bridg.  431. 

(s)  Attorney-General  v.  Sands,  Hard.  495,  per  Lord  Hale. 

(t)  Burgess  v.  Wheate,  1  Ed.  187,  per  Sir  T.  Clarke. 

(u)  Wikes's  case.  Lane,  54,  agreed;  King  v.  Daccombe,  Cro.  Jac.  512;  Jenk. 
190,  case  92;  Attorney-General  v.  Sands,  Hard.  405  ;  Pawlett  v.  Attorney-General, 
Hard.  467,  per  Lord  Hale  ;  Sir  J.  Back's  case  cited  Holland's  case,  Al.  16.  Chattel 
interests  accruing  to  a  felon  after  conviction,  but  before  restoration  to  civil  rights, 
are  forteited  to  the  crown.  Roberts  v.  Walker,  1  R.  &  M.  752.  Secus  as  to  chattels 
accruingsubscquently  to  such  restoration.  Stokes  v.  Holden,  1  Keen,  145;  Gough 
V.  Davies,  2  K.  &  J.  623 ;  Thompson's  Trusts,  22  Beav.  506. 

(v)  Wikes's  case.  Lane,  54,  per  Barons  Snig  and  Althara. 

(ic)  Holland's  case,  Al.  14;  Sir  J.  Back's  case  as  cited  by  Rolle,  J.  Id.  16; 
Attorney-General  v.  Sands,  Hard.  495,  per  Lord  Hale  ;  and  see  Kildare  v.  Eustace, 
2  Ch.  Ca.  188 ;  S.  C.  1  Vern.  405,  419,  423,  428,  437. 

(z)  See  Co.  Lit.  251  a. 

(ij)  Lethieullier  v.  Tracy,  3  Atk.  728,  730  ;  Lady  Whetstone  v.  Bury,  2  P.  W.  146. 

(z)  Attorney-General  v.  Sands,  Hard.  488  ;  and  see  1  Harg.  Jurid.  Exerc.  383. 

(«}  1  Ed.  176  ;  S.  C.  1  W.  Black.  123. 


546  LEW  IN    ON    THE    LAW    OF    TRUSTS,    ETC. 

tioned,  liowever,  that  Sir.  T.  Clark  and  Lord  Mansfield,  while  they  pur- 
sued different  lines  of  reasoning,  carried  their  principles  to  too  great  an 
excess.  Sir  Thomas  Clarke  contended  that  trusts  must  be  governed 
strictly  by  uses,  and,  therefore,  as  no  escheat  in  equity  was  of  a  use,  there 
could  be  none  of  a  trust.  But  this  position  is  too  large ;  for  trusts  do 
not  follow  absolutely  the  law  of  uses  :  for  then  no  curtesy  would  be  of  a 
trust,  the  judgment  creditor  would  have  no  lien,  and  equitable  interests 
would  not  be  assets.  Lord  Mansfield,  on  the  other  hand,  advanced  the 
doctrine,  that,  as  lands  escheat  at  law,  so  trusts  must  escheat  in  equity ; 
that  trusts,  since  the  statute  of  H.  8,  are  not  regulated  by  uses,  but  the 
maxim  is,  "  Equity  follows  law," — "  The  trust  is  the  estate."  But  to 
this  it  must  be  answered,  that  a  trust  has  always  been  recognised  as  a 
r*r7an  *^i°&  **'"^  generis,  not  as  identical  with  the  legal  fee  :  it  binds 
L  J  not,  for  instance,  a  purchaser  for  valuable  consideration  without 
notice.  The  intermediate  opinions  of  Lord  Northington  are  to  be  regarded 
as  those  most  in  accordance  with  the  general  system  :  trusts,  he  thought, 
were  to  be  administered  on  the  footing  of  uses ;  but  not,  as  Sir  Thomas 
Clark  maintained,  to  the  exclusion  of  the  improvements  adopted  subse- 
quently to  the  statute  of  H.  8  :  he  agreed  with  Lord  Mansfield,  that 
trusts  imitated  the  legal  possession ;  but  he  added  the  qualification,  as 
between  the  privies  to  the  trust  only,  and  not  as  respected  strangers. 
"  Equity,"  he  said,  ''  follows  the  law ;  and,  as  between  the  cestui  que 
TRUST  and  those  claiming  by,  from,  and  under  him,  it  is  equity  that  he 
should  be  considered  as  formally  possessed  of  that  estate  of  which  he  is 
and  appears  substantial  owner.  It  is  true  this  court  has  considered 
trusts,  as  betioeen  the  trustee,  CESTUI  QUE  TRUST,  and  those  claiming 
under  them,  as  imitating  the  possession ;  but  it  would  be  a  bold  stride, 
and,  in  my  opinion,  a  dangerous  conclusion,  to  say,  therefore,  this  court 
has  considered  the  creation  of  a  trust  as  a  mere  nullity,  and  the  estate  in  all 
respects  the  same  as  if  it  still  continued  in  the  seisin  of  the  creator  of  the 
trust  or  the  person  entitled  to  it.  My  objection  to  the  claim  of  the  lord  is, 
that  it  is  for  the  execution  of  a  trust  that  does  not  exist.  Where  there  is  a 
trust,  it  should  be  considered  in  this  court  as  the  real  estate  between  the 
cestui  que  trust,  and  tlie  trustee,  and  all  claiming  by  or  under  them; 
and  the  trustee  should  take  no  beneficial  interest  that  the  cestui  que  trust 
can  enjoy;  but,  for  my  own  part,  I  know  no  instance  where  this  court 
ever  permitted  the  creation  of  a  trust  to  affect  the  right  of  a  third." (^b'j 
The  determination  in  Burgess  v.  Wheate  has  been  followed  in  more 
recent  eases, (c)  and  the  principles  there  laid  down  have  been  held  by 
the  present  master  of  the  rolls  to  apply  to  the  case  of  a  mortgage  in  fee, 
and  the  subsequent  death  of  the  mortgagor  intestate,  his  honor  deciding 
that  in  such  case  the  equity  of  redemption  does  not  escheat  to  the  crown, 
but  belongs  to  the  mortgagee,  subject  to  the  debts. («^) 

(5)  1  Ed.  250. 

(c)  Taylor  v.  Haygarth,  14  Sim.  16 ;  Davall  v.  New  River  Company,  3  De  6.  & 
Sm.  394;  Cox  v.  Parker,  22  Beav.  168. 

(d)  Beale  v.  Symonds,  16  Beav.  406. 


I 


PROPERTIES    OF    CESTUI'S    QUE    TRUST    ESTATE.     547 

1 

*SECTION  X.  [*680] 

THE  DESCENT   OF   THE   TRUST. 

A  trust  is  governed  by  the  same  rules  of  descent  as  the  legal  estate  is 
on  which  the  trust  is  ingrafted,  and  that  whether  the  legal  estate 
descends  according  to  the  course  of  common  law,  or  is  subject  to  a  lex 
loci. 

If  one  seised  of  land  ex  parte  materna  convey  to  a  person  upon  ti'ust, 
and  no  trust  is  expressed,  the  resulting  interest  is  part  of  the  original 
estate,  and  will  descend  in  the  maternal  line,  and,  failing  the  heirs  ou 
the  part  of  the  mother,  will  rather  absolutely  determine,  than  pass  into 
the  paternal  line.(e)  But  if  one  seised  ex  parte  materna  devise  to  A. 
and  his  heirs  upon  trust  for  a  person  for  life,  and  then  in  trust  to  convey 
to  the  testator's  heir  at  law,  this  breaks  the  descent,  and  the  heir  ex 
parte  paterna  is  entitled  to  the  equitable  remainder.(/) 

If  the  land  be  subject  to  gavelkind,  borough  English,  or  other  custom, 
the  equitable  interest  will  follow  the  same  course  of  inheritance. (^) 

And  a  trust  of  copyholds  as  well  as  of  freeholds  is  governed  by  the 
descent  of  the  legal  estate. (/;) 

The  analogy  to  law  is  so  strictly  preserved,  that  if  the  last  cestui  que 
trust  had  no  seisin  of  the  equitable  estate  coiTesponding  to  possessio 
fratris  at  law,  the  trust  will  descend  to  the  brother  of  the  half  blood, 
not  to  the  sister  of  the  whole  blood. (i"i  But,  by  the  late  act  the  half 
blood  is  now  capable  of  inheriting  estates,  whether  legal  or  equitable. (A) 

If  a  settlement  contain  a  power  of  sale,  with  a  trust  to  *rein-  rj^^^o-i-i 
vest  the  proceeds  in  a  purchase  to  the  same  uses,  and  the  lands  L  -I 
be  sold,  but  the  proceeds  be  not  reinvested,  though  the  bulk  of  the 
estate  sold  was  of  gavelkind  tenure,  yet  if  one  of  the  uses  be  to  A.  and 
his  heirs,  the  proceeds  of  the  sale  will  descend  to  the  heirs  of  A.  at 
common  law,  and  not  to  the  heirs  by  the  custom  of  gavelkind. (?) 

And  if  gavelkind  lands  be  limited  to  a  person's  heirs  as  p?(/-<:'7«as£rs 
the  common  law  heirs  and  not  the  customary  heirs  are  entitled ;  as 
where  a  testator  directed  trustees  to  stand  seised  of  gavelkind  lands  for 
the  separate  use  of  A.  for  life,  and  so  as  her  husband  should  not  inter- 
meddle therewith,  and  after  her  death  upon  trust  to  convey  to  the  heirs 
of  her  body  for  ever.  Lord  Hardwicke  held  that  the  trust  was  executory, 
and  that  the  court  must  therefore  look  to  the  intention,  which  was  to 
give  a  life-estate  to  A.,  and  the  remainder  to  the  heirs  as  purchasers  ; 
for,  as  the  husband  was  not  to  intermeddle  therewith,  his  curtesy  was 

(e)  Burgess  v.  Wheate,  1  Ed.  177,  see  186,  216,  256 ;  Langley  v.  Sneyd,  1  Sim. 
&  Stu.  45. 

(/)  Davis  V.  Kirk,  2  Kay  &  John.  391, 

\g)  Fawcett  v.  Lowther,  2  Ves.  304,  per  Lord  Hardwicke ;  Banks  v.  Sutton,  2 
P.  W.  713,  per  Sir  J.  Jekyll;  Jones  v.  Reasbie,  22  Vin.  Ab.  185,  pi.  7. 

(A)  Trash  v.  Wood,  4  M.  &  Cr.  324. 

\i)  Banks  v.  Sutton,  2  P.  W.  713,  per  Sir  J.  Jekyll;  Cowper  v.  Earl  Cowper,  lb. 
736, ^er  eundem;  Cunningham  v.  Moody,  1  Ves.  174;  Co.  Lit.  14  b  ;  and  see  the 
cases  cited  Casborne  v.  Scarfe,  1  Atk.  604. 

(k)  3  &  4  W.  4,  c.  106,  s.  9.  (/)  Hougham  v.  Sandys,  2  Sim.  95,  see  153. 


5i8  LEWIX    ON    THE    LAW    OF    TRUSTS,    ETC. 

to  be  excluded,  wbicli  would  not  be  the  case  if  A.  were  tenant  in  tail. 
A  conveyance  of  tbe  legal  estate  was  therefore  directed  to  the  eldest  son 
and  tbe  heirs  of  bis  body,  with  remainder  to  tbe  second  son,  and  tbe 
heirs  of  his  body,  &c.  "  Not,"  added  Lord  Hardwicke,  "  according  to 
tbe  custom  of  gavelkind,  because  it  must  go  according  to  tbe  rule  of 
common  law,  being  not  a  trust  executed,  but  executory."(w?) 


SECTION  XI. 

OP   ASSETS. 

The  trust  of  a  chattel  was  always  accounted  assets  in  equity.(7i) 

But  whether  the  trust  of  a.  freehold  should  be  assets  in  tbe  bands  of 
the  heir  for  payment  of  debts  by  specialty  was  for  a  long  time  vexata 
r*fi89T  9'^<^^f^o.  On  the  one  hand  it  was  argued,  *that  the  trust  ought 
L  "'-1  to  follow  tbe  use,  and  that  the  use  was  not  liable  to  a  bond  credi- 
tor ;  on  tbe  other  band  it  was  said,  that  the  trust  since  tbe  Statute  of 
Uses  bad  been  conducted  by  tbe  courts  on  more  liberal  principles,  and, 
as  tbe  legal  fee  was  available  to  tbe  discbarge  of  specialty  debts  at  law, 
so  a  court  of  equity  ought  to  adopt  the  same  rule  in  tbe  administration 
of  trusts. 

It  was  determined  by  Lord  Hale,  Chief  Justice  Hyde,  and  Justice 
Windham,  in  the  case  of  Bennet  v.  Box,  that  a  trust  in  fee  should  7wt 
be  assets  j(o)  and  Lord  Keeper  Bridgman  afterwards  felt  himself  bound 
by  the  authority  of  this  decision  in  respect  of  a  trust,(^p\  though  be 
doubted  somewhat  as  to  an  equity  of  redemption  ;{(j^  and  so  the  law  as 
to  a  trust  was  laid  down  b}'^  Lord  Hale  in  Attorney-General  v.  Sands. (r) 

The  question  was  renewed  before  Lord  Nottingham  in  the  case  of 
Grrey  v.  Colvile.(i.)  John  Colvile  gave  a  bond  to  Lady  Grey  for  1500/., 
aud  died  intestate.  The  obligor  in  his  lifetime  bad  purchased  lands  in 
tbe  names  of  himself  and  Wise,  to  hold  to  them  for  their  lives,  remainder 
to  Sir  John  and  his  heirs,  and  other  lands  in  the  names  of  Morris  and 
Saunders  in  trust  for  Sir  John  in  fee.  Lady  Grey  brought  an  action  at 
law  against  the  heir,  who  (the  case  occurring  prior  to  the  Statute  of 
Frauds)  pleaded  riens  per  descent  in  prcesenti,  but  only  tbe  reversion  of 
the  lands  expectant  on  tbe  decease  of  Wise.  Lady  Grey  then  filed  a  bill 
in  chancery  to  have  the  trust  estates  declared  assets  in  equity,  and  Lord 

(m)  Roberts  v.  Dixwell,  1  Atk.  607  ;  and  see  Thorp  v.  Owen,  2  Sm.  &  GiflF.  90. 

{n)  Attorney-General  V.  Sands,  Freem.  131;  Barthrop  v.  West,  2  Ch.  Re.  62; 
Duke  of  Norfolk's  case,  3  Ch.  Ca.  10. 

(o)  1  Ch.  Ca.  12.  {p)  Pratt  v.  Colt,  1  Ch.  Ca.  128;  S.  C.  Freem.  139. 

Iq)  Trevor  v.  Perryor,  1  Ch.  Ca.  148. 

(r)  Hard.  490  ;  S.  C.  Freem.  131  ;  S.  C.  Nels.  134. 

(s)  2  Ch.  Re.  143.  This  case  has  been  the  most  unfortunately  reported  of  any 
perhaps  in  the  books.  In  p.  143,  for  "  the  defendant's  wife,"  read  "  the  defendant 
Wise;"  and  a  few  lines  after,  for  "  wife,"  read  "Wise."  In  page  144,  for  "  Colvile 
and  his  wife,"  read  "  Colvile  and  Wise  ;"  for  "of  one  lease,"  read  "of  one  Leke," 
and  correct  the  passage  thus  :  "  The  said  Josia  also  insists,  that  the  premises  are 
incumbered  by  a  former  judgment  of  one  Leke  for  800Z.,  and  that  the  plaintiff's 
creditors,  and  other  the  creditors,  &c.,  insist  they  are  creditors,"  &c.  In  page 
145,  for  "the  defendant's  wife."  read  "  the  defendant  Wise." 


PROPERTIES  OF  CESTUI'S  QUE  TRUST  ESTATE.  549 

Nottingham,  acting  on  the  bvoad  rule  of  analogy  to  law,  decreed  the 
debt  to  be  paid.  The  case  was  afterwards  reheard  before  Lord  Guild- 
ford, and  is  reported  by  Yeruon  under  the  title  of  Creed  v.  Covile.(^) 
*The  plaintiff  argued  that  Bennet  v.  Box  was  a  precedent  of  the  r^jj^no-i 
judges'  making,  who  were  for  restraining  the  court  of  chancery  L  "^J 
to  the  strict  rules  of  law ;  that  the  trust  of  a  term  was  assets,  and  why 
not  the  trust  of  a  fee-simple ;  an  equity  of  redemption  was  assets,  and 
why  not  a  trust  ?  But  Lord  Guildford  said,  "  I  know  the  ease  of  Ben- 
net  y.  Box  has  had  hard  words  given  it,  and  been  much  railed  at,  but 
the  decree  in  that  cause  was  made  upon  great  advice,  and  I  do  not  know 
how  I  could  be  better  advised  now."  And  he  said,  '^  There  was  a  differ- 
ence between  the  case  of  an  heir  and  the  case  of  an  executor,  and  there- 
fore the  trust  of  a  term  and  the  trust  of  an  inheritance  were  not  the  same 
in  this  point ;  for  whatever  money  came  to  the  hands  of  an  executor, 
either  by  sale  of  the  term,  or  if  money  was  decreed  to  him  in  a  court  of 
equity,  would  be  assets;  but  if  an  heir  before  action  brought,  sold  and 
aliened  the  assets,  the  money  was  not  liable  in  his  hands, (?()  unless  the 
sale  were  with  fraud  and  collusion  ;  as,  if  an  heir  sold  and  bought  again, 
there  the  new-purchased  lands  would  be  assets.  And  as  to  an  equity  of 
redemption,  if  a  man  had  a  mortgage  and  a  bond,  before  the  mortgage 
should  be  redeemed  by  the  heir  the  bond  ought  to  be  satisfied,  but  he 
did  not  know  that  an  equity  of  redemption  should  be  assets  in  equity  to 
all  creditors."  And  his  lordship  said,  he  "  should  be  much  governed 
by  the  case  of  Bennet  v.  Box,  unless  they  could  show  that  the  latter  pre- 
cedents had  been  otherwise,"  and  directed  them  to  attend  him  with  pre- 
cedents towards  the  latter  end  of  the  term.  The  cause  was  brought  on 
again  the  December  following,  and  the  court  ordered  that  the  parties 
should  attend  the  two  Chief  Justices  and  the  Lord  Chief  Baron,  who 
were  desired  to  certify  their  opinion  on  the  question. (r)  In  Michaelmas 
term  the  next  year,  upon  the  motion  of  the  defendants,  it  was  ordered, 
that,  unless  plaintiffs,  the  creditors,  procured  the  certificate  of  the  Lord 
Chief  Justices'  and  Lord  Chief  Baron's  opinion  by  the  first  day  of  the 
next  term,  *^7ie  hill  should  he  dismissed  without  fm-ther  mot  ion. (tv)  r-^nni-. 
No  further  proceedings  appear  in  the  cause ;  and,  therefore,  it  L  J 
must  be  concluded.  Lord  Nottingham's  decision  was  reversed. (.>;) 

Thus  stood  the  law  before  the  Statute  of  Frauds.(?/)  By  the  10th 
section  of  that  act  it  was  declared,  that  "  if  any  cestui  que  trust  should 
die,  leaving  a  trust  in  fee  simple  to  descend  to  his  heir,  then  and  in 
every  such  case  such  trust  should  be  deemed  and  taken,  and  was  there- 
by declared  to  be,  assets  by  descent,  and  the  heir  should  be  liable  to 
and  chargeable  with  the  obligation  of  his  ancestor  for  and  by  reason  of 
such  assets,  as  fully  and  amply  as  he  might  or  ought  to  have  been,  if  the 
estate  in  law  had  descended  to  him  in  possession,  in  like  manner  as  the 
trust  descended." 

This  enactment  must  be  taken  to  embrace  simple  trusts  only,  and  not 

(0   1  Vern.  1V2.  {u)  Since  made  liable  bj  3  W.  &  M.  c.  14. 

(yj  R.  L.  1683,  A.  fol.  166.  {w)  R.  L.  1684.  A.  fol.  210. 

(2)  But  see  Goffe  v.  Whalley,  1  Vera.  282.  (y)  29  Car.  2,  c.  3. 


550       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

complicated  trusts,(2;)  or  equities  of  redemption. (a)  But  such  interests 
as  are  without  the  statute  may,  upon  the  general  principles  of  equity,  be 
treated  as  assets  by  analogy  to  law. 

In  Plucknet  v.  Kirk(Z-)  it  was  expressly  decided  by  Lord  Jeffries,  that 
an  equity  of  redemption  of  a  mortgage  in  fee  *should  be  assets 
L  "°^J  jjj  equity  to  the  payment  of  bond  debts,  and  so  it  was  held  in  an 
anonymous  case  reported  by  Freeman  ;(c)  and  the  same  law  was  recog- 
nized in  Acton  V.  Peirce  by  Lord  Keeper  Wright,(fZ)  and  was  admitted  by 
Lord  Hardwicke  without  observation  in  Plunket  v.  Penson.(c) 

The  doctrine  established  by  these  authorities  with  respect  to  equities 
of  redemption  is  directly  at  variance  with  the  decision  in  Grey  v.  Colvile, 
relating  to  trusts.  But  the  maxim  is  generally  admitted,  that,  as  between 
the  trustee  and  cestui  que  trust  and  all  claiming  by  or  under  them,  the 
equitable  ought  to  imitate  the  legal  estate,  and  therefore,  upon  principle,  the 
rule  that  governs  equities  of  redemption  ought  equally  to  be  applied  to 
every  other  equitable  interest.  It  would  be  a  strong  position  to  advance, 
that  until  the  act  of  3  &  4  W.  4,  a  trust  was  not  assets  unless  the  debtor 
had  merely  a  plain  and  simple  trust ;  but  such  would  be  the  result,  were 
trusts  only  liable  as  assets  by  virtue  of  the  Statute  of  Frauds. 

The  question,  as  regards  debtors  who  have  died  since  the  29th  of 
August,  1833,  has  now  been  rendered  unimportant  by  the  3  &  4  W.  4, 
c.  104,  which  enacts,  that  all  a  person's  "estate  or  m^eres^  (which  must 
include  a  trust)  in  lands,  tenements  or  hereditaments,  corporeal,  or 
incorporeal,  or  other  real  estate,  whether  freehold,  customaryhold,  or 
copyhold,"  shall  be  assets  for  the  payment  of  debts  as  well  on  simple 
contract  as  on  specialty. 

There  remains  to  be  considered  the  question,  whether  a  trust  shall 
be  administered  as  legal  or  equitable  assets;  and  upon  this  subject  we 
shall  first  advert  to  the  case  of  trusts  of  chattel  interests,  that  is,  to 
equitable  assets  in  the  hands  of  the  executor. 

It  may  be  remarked  in  limine,  that  if  an  executor  recover  money  in 
that  character  upon  a  trust  or  other  equitable  right,  the  proceeds,  wJieii 
actually  come  to  his  hands,  will  be   legal  assets,  even   in  a  court  of 

{z)  The  former  part  of  the  clause,  which  enables  the  sheriff  to  take  a  trust  in 
execution,  was  construed  not  to  include  a  complicated  trust,  and  therefore  it  is  pre- 
sumed the  latter  part  of  the  clause  could  not  be  differently  interpreted. 

(a)  Plunket  v.  Penson,  2  Atk.  293,  per  Lord  Hardwicke;  Sawley  v.  Gower,  2 
Vern.  61,  per  Lord  Jeffries. 

(6)  1  Vern.  411;  and  see  Lord  Jeffries's  opinion  in  Sawley  y.  Gower,  2  Vern. 
61.  Plucknet  v.  Kirk,  as  stated  in  Reg.  Lib.,  was  this : — Kirk,  seised  of  an  estate 
in  fee,  mortgaged  it  to  Sutton  in  fee  for  securing  1300Z.  and  interest,  and  afterwards 
confessed  a  judgment  to  Plucknet  for  securing  a  loan,  and  two  judgments  to 
Rogers  for  securing  other  loans,  and  became  indebted  to  Wood  and  Dakins  by 
bond.  The  two  judgment  creditors  joined  with  the  two  bond  creditors  and  others 
who  were  simple-contract  creditors  in  filing  a  bill,  by  which  they  prayed  that,  in 
default  of  personal  assets,  they  might  redeem  the  mortgage,  and  Lord  Jeffries 
decreed  that  the  plaintiffs,  the  judgment  and  bond  creditors,  might  redeem  ;  and 
as  to  the  plaintiffs,  the  simple-contract  creditors,  his  lordship  said,  "  he  would 
advise  with  the  lords  and  the  judges  thereon,  and  after  he  had  so  advised  would 
give  such  directions  touching  the  said  debts,  whether  they  should  be  let  into  the 
redemption  of  the  premises,  as  should  be  agreeable  to  equity."     1686,  B.  fol.  181, 

(c)   P.  115.  {d)   2  Vern.  480.  (e)  2  Atk.  290. 


PROPERTIES    OF    CESTUI'S    QUE    TRUST    ESTATE.     551 

law :(/)  is  it  not,  then,  an  inconsistency  to  say,  that  if  the  property  has  been 
reduced  into  *possession,  a  court  of  equity  shall  administer  it  as  r;)jf'op-i 
legal  assets,  but  if  it  be  still  outstanding,  it  shall  be  administered  L  J 
as  equitable  assets  ?  Upon  what  principle  can  the  court  vary  the  rights 
of  parties  from  an  accidental  circumstance  arising  out  of  the  conduct  of 
the  executor  ? 

In  Morgan  v.  Sherrard(^)  a  person  had  mortgaged  a  term  of  years, 
and  afterwards  acknowledged  a  statute  to  Lord  Sherrard,  and  then 
confessed  a  judgment  to  Morgan.  The  latter  filed  his  bill  against  the 
executor  to  have  the  equity  of  redemption  made  legal  assets  (a  judgment 
at  law  taking  precedence  of  a  statute,)  and  so  Lord  Guildford  decreed  it. 

Wilson  V.  rielding(7i)  not  only  confirms  this  decision,  but  sets  the 
principle  in  a  clear  light.  An  executor  had  exhausted  the  personal 
assets  by  part  payment  of  a  debt  secured  by  a  mortgage  and  the  testator's 
bond,  and  the  simple-contract  creditors  filed  a  bill  against  the  heir  to 
oblige  him  to  refund  what  had  been  discharged  of  the  mortgage  debt 
out  of  the  personal  estate.  The  heir  was  decreed  to  make  good  the 
money,  and  the  dispute  was,  whether  the  fund,  which  was  called  equita- 
ble assets  because  it  could  only  be  recovered  in  a  court  of  equity,  should 
be  distributed  among  the  creditors  pari  passu,  or,  one  of  the  creditors 
having  obtained  a  judgment  against  the  executor,  should  be  administered 
according  to  the  legal  priority.  Lord  Macclesfield  said,  '<  The  doctrine 
that  seems  to  be  laid  down  by  the  counsel  for  the  simple-contract  credi- 
tors, that  there  is  this  standing  difi"erence  between  assets  in  law  and 
assets  in  equity,  that,  though  the  former  shall  go  according  to  the  course 
of  administration  prescribed  by  law,  yet  the  latter  shall,  without  any 
regard  to  this,  go  among  the  creditors  equally  however  difi'erent  the 
nature  of  their  debts,  is  a  doctrine  witliout  any  reason  or  foundation, 
and  looidd  establish  a  ride  in  equity  directly  contrary  to  the  hnown 
rides  of  law  as  to  the  order  in  tchich  debts  are  to  be  jmid.  Indeed,  as 
to  the  case  put  of  land  devised  by  a  testator  to  be  sold  for  the  payment 
of  his  debts,  it  is  so,  and  this  court  does  always  decree  the  profits  arising 
from  the  sale  equally  among  all  the  creditors ;  but  then  *this  r.tP07-i 
land  may  be  considered  as  a  gift  of  the  testator  among  all  his  L  J 
creditors,  and  as  the  testator,  the  donor,  has  not  thought  ft  to  make  any 
distinction  between  his  creditors,  so  this  court,  which  is  in  nature  of  a 
trustee  for  the  testator,  icill  make  none  either.  But,  generally  speaking, 
there  is  no  difference  between  assets  in  law  and  assets  in  equity,  but 
both  must  be  distributed  by  the  executor  in  a  course  of  administration." 

The  next  case  is  that  of  the  creditors  of  Sir  Charles  Cox,(i)  in  which 
the  property  in  question  was  the  equity  of  redemption  of  a  term.  Sir 
J.  Jekyll  was  of  opinion  it  should  be  equitable  assets,  "it  being," 
he  said,  "  precarious  and  doubtful  whether  the  mortgage  would  prove 
worth  redeeming,  and  all  debts  being  in  a  conscientious  regard  equal, 
and  equality  the  highest  equity;"  but  at  the  same  time  it  was  resolved 

(/)  Hawkins  v.  Lawse,  1  Leon.  155,  per  Periam,  J.:  Anon,  case,  1  Roll.  Rep. 
56  ;  Harwood  v.  Wrayman,  cited  lb. ;  S.  C.  reported  Mo.  858. 
(^)  1  Vern.  293. 
(k)   10  Mod.  426  ;   S.  C.  2  Vern.  763.  (0  3  P.  "W.  341. 


552  LEW  IX    ox    THE    LAW    OF    TRUSTS,    ETC. 

by  the  court,  tliat  where  a  bond  was  due  to  A.,  but  taken  in  tbe  name 
of  B.,  and  A.  died,  that  should  be  paid  in  a  course  of  administration, 
for  in  such  a  case  there  could  hardly  be  any  dispute  touching  the  quan- 
tum of  the  debt,  seeing  the  principal,  interest,  and  also  the  costs,  must 
be  paid  to  the  obligee  in  the  bond ;  whereas,  in  the  other  case,  the  costs 
must  be  paid  by  the  party  coming  to  redeem  :  for  the  same  reason,  if  a 
term  of  years  were  taken  in  the  name  of  B.  in  trust  for  A.,  this  on  the 
death  of  A.  would  be  legal  assets,  for  here  the  right  to  the  thing  was 
plain;  and  if  the  trustee  contested  it,  he  m\x?,t prima  facie  do  it  on  the 
peril  of  paying  costs. 

Hartwell  v.  Chitters,(7i;)  before  Lord  Hardwicke,  was  also  the  case  of 
the  equity  of  redemption  of  a  term,  and  (the  point  apparently  not  un- 
dergoing much  discussion,)  was  determined  in  conformity  with  Sir  J. 
Jekyll's  decision,  and  subsequently,  in  a  case  before  the  Queen's  Bench, 
we  find  Mr.  Justice  Baj^ey  referring  to  both  Hartwell  v.  Chitters  and 
the  case  of  Sir  Charles  Cox's  creditors  with  apparent  approval.^ 

Mr.  Cox,  in  his  note  to  Peere  Williams,  disapproves  of  the  doctrine  held 
by  Sir  Joseph  Jekyll,  that  an  equity  of  redemption  should  be  accounted 
equitable  assets ;  and  observes,  that,  apon  looking  into  the  master's  re- 
port  made  in  pursuance  of  *the  decree  in  Cox's  case,  it  appeared 
L  J  the  two  only  creditors  were  in  equal  degree,  and  the  master  there- 
fore declined  to  distinguish  which  were  legal  and  which  were  equitable 
assets,  so  that  the  point  in  question  was  not  in  fact  determined ;  and  he 
adds,  that  Hartwell  v.  Chitters  rested  entirely  on  the  authority  of  Sir 
Charles  Cox's  case.  At  all  events  it  must  be  remarked,  that  Sir  Joseph 
Jekyll  expressly  approved  the  doctrine,  that  2i  plain  trust  should  be  legal 
assets,  though  he  followed  his  bent  of  taking  subtle  and  refined  distinc- 
tions, by  holding  that  a  doubtful  and  j^recarioits  equity  should  be  admin- 
istered as  equitable  assets.  A  precarious  trust  ought  upon  principle  to 
be  governed  by  the  same  rules  as  a  plain  trust;  and  therefore  his  honor's 
distinction  could  scarcely  be  relied  upon;(m)  and  it  was  said  long  since 
by  Mitford,  afterwards  Lord  Redesdale,  arguendo,  that  Cox's  case,  and 
Hartwell  v.  Chitters,  had  been  considered  as  overruled. (n) 

In  a  late  case  before  Vice-Chancellor  Kindersley,  the  distinction  be- 
tween legal  and  equitable  assets  is  thus  laid  down  :  Legal  assets  are  such 
as  are  available  to  the  creditor  in  a  court  of  law,  equitable  assets  such  as 
the  creditor  can  only  reach  through  a  court  of  equity.  Whether  the 
assets  are  such  that  the  executor  can  recover  them  in  a  court  of  law  or 
in  a  court  of  equity  only,  is  immaterial.  The  true  test  is,  whether  he 
recovers  them  <'  virtute  officii.'^  If  the  assets  come  to  his  hands  as  exe- 
cutor, a  court  of  law  would  treat  them  as  assets,  and  they  are  to  be  ad- 
ministered as  legal  assets. fo)  The  eases  of  Cox's  Creditors  and  Hartwell 
V.  Chitters  must  now  be  treated  as  overruled. 

A  trust  in  fee  stands  in  a  very  difl"erent  light  from  the  trust  of  a  chat- 

{k)   Amb.  308.  [1)   Clay  v.  Willis,  1  Barn.  &  Cres.  3T2. 

{m)  See  Sharpe  v.  Eaii  of  Scarborough.  4  Ves.  541 :  but  see  Clay  v.  Willis,  1  B. 
&  C.  372  ;  Barker  v.  May,  9  B.  &  C.  493.  ' 

(n)  Sharpe  v.  Earl  of  Scarborough,  4  Ves.  541. 

(o)  Cook  V.  Gregson,  3  Drew.  547  ;  and  see  Lovegrove  \.  Cooper,  2  Sm.  &  Gif. 
271 :  French  r.  French,  3  Jur.  X.  S.  428. 


PROPERTIES    OF    CESTUI'S    QUE    TRUST    ESTATE.     553 

tel  in  the  hands  of  the  executor.  As  regards  the  inheritance,  until  a 
late  actQ:»)  it  was  only  in  respect  of  creditors  by  specialty  in  which  the 
heirs  were  bound,  that  the  question  of  legal  or  equitable  assets  could  in 
fact  have  arisen,  *for  specialties  in  which  the  heirs  were  not  r-^poQ-. 
bound,  and  simple-contract  debts,  were  not  payable  out  of  real  L  *^J 
estate,  and  statutes  and  judgments  were  liais,  to  a  partial  extent,  upon 
the  equitable  fee,  and  were  payable  not  as  debts,  but  as  incumbrances. 
In  respect,  then,  of  specialties  in  which  the  heirs  were  bound,  a  plain 
and  simple  trust  was  made  assets  in  a  court  of  law  in  the  hands  of  the 
lieir,  by  the  Statute  of  Fravids,  and  therefoi'e  was  legal  assets  in  equity  ;(j) 
but  complicated  trusts,  and  equities  of  redemption,  were  not  touched  by 
the  statute;  and  it  would  seem,  upon  principle,  that  as  equity  subjected 
the  trust  to  specialty  creditors  by  analogy  only  to  law,  the  court  ouo-ht, 
by  observing  the  analogy  throughout,  to  have  adopted  the  legal  course 
of  administration. 

Lord  Nottingham,  than  whom  no  chancellor  had  a  more  just  concep- 
tion of  the  true  nature  of  trusts,  determined  to  this  effect  in  the  case  of 
Grey  v.  Colvile.(r)  The  bond-creditors  had,  since  the  ancestor's  de- 
cease, entered  up  judgments  against  the  heir;  and  Lord  Nottingham, 
following  the  analogy  of  law,  decided  that  the  creditors  should  be  paid 
according  to  the  priority  of  their  judgments  out  of  a  trust  in  fee,  thus 
treating  the  trust  estate  as  legal  assets  in  the  hands  of  the  JieirJs) 

Similarly,  in  the  case  of  a  devise  of  a  trust  in  fee,  the  analogy  pre- 
sented by  the  case  of  the  devise  of  a  legal  fee  ought,  it  is  conceived,  to 
be  pursued.  It  must  be  borne  in  mind,  that  until  the  3  &  4  W.  &  M. 
c.  14,  a  devise  of  the  real  estate  absolutely  deprived  the  specialty  cre- 
ditors of  all  remedy  against  either  heir  or  devisee,  and  that  by  this  sta- 
tute a  remedy  was  first  given  against  the  heir  and  devisee  jointly,  in 
respect  of  the  property  so  devised.  The  statute,  however,  expressly  ex- 
cepted from  its  operation  those  cases  of  devises  for  payment  of  debts,  &c., 
in  which,  according  to  the  doctrine  of  the  courts  of  equity,  real 
estate  devised  was  administered  as  equitable  assets,  and  it  is  conceived 
that  the  true  test  whether  a  trust  in  fee  devised  should  be  *ad-  ^ .  pQ„-, 
ministered  as  legal  or  equitable  assets,  was  whether,  if  the  estate  L  J 
devised  had  been  a  legal  estate  it  would  have  constituted  legal  or  equi- 
table assets. 

The  decision  in  Plunket  v.  Penson,  though  the  observations  of  Lord 
Hardwicke  are  somewhat  sweeping,  is  not  opposed  to  this  view.  In  that 
case  a  testator,  seised  of  the  equity  of  redemption  of  a  trnst  estate  in 
fee,  devised  it  to  his  son,  who  was  also  his  heir,  subject  to  the  testator's 
debts  and  some  annuities  and  legacies,  and  died  indebted  by  bond  and 
simple  contract.  The  point  at  issue  was,  whether  both  species  of  cre- 
ditors should  be  i[)SLid  pari  jiassu,  or  the  legal  priority  should  be  observed. 

(p)  3  &  4  Will.  4,  c.  104,  which  will  be  noticed  presently. 

(q)  Plunket  V.  Penson,  2  Atk.  293,  per  Lord  Hardwicke;  Kino-  v.  Ballett  2 
Tern.  243.  ' 

(r)    2  Ch.  Re.  143. 

(s)  See  Morrice  v.  Bank  of  England,  3  Sw.  585  ;  Dollond  v.  Johnson,  2  Sm  & 
Gif.  301. 


554       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

The  case  of  Massam  v.  Harding  was  cited  ly  counsel ;  and  it  was  said 
that  Lord  Chief  Baron  Comyns  had  there  taken  the  distinction,  that,  if 
it  was  a  mortgage  for  years,  then  the  equity  of  redemption  would  be  legal 
assets,  because  the  whole  interest  was  not  gone  from  the  mortgagor,  the 
reversion  in  fee  being  left  in  him ;  otherwise  where  it  was  a  mortgage  in 
iQQ-Jt)  and  Lord  Hardwicke  said,  he  thought  the  distinction  was  right; 
and  in  the  principal  case  his  lordship  said,  "I  agree,  that  if  a  mere  trust 
estate  descends  upon  an  heir-at-law,  it  will  be  considered  as  legal,  and 
not  as  equitable  assets ;  and  this  is  founded  upon  the  third  clause  of  the 
statute,(i/)  which  gives  a  specialty  creditor  his  remedy  at  law  by  an  action 
of  debt  against  the  heir  of  the  obligor  j  but  it  has  not  made  a  mortgage 
in  fee  of  a  trust  estate  subject  to  the  same  thing;  for  if  the  specialty 
creditor  should  bring  an  action  against  the  heir  of  the  mortgagor,  he 
might  plead  riens  per  descent.  Therefore,  if  the  plaintiff  be  under  the 
necessity  of  coming  here,  this  court  will  act  according  to  its  known  rule 
of  doing  equal  justice  to  all  creditors  without  any  distinction  as  to  pri- 
ority." But  whatever  force  may  be  attributed  to  these  observations,  it 
certainly  was  not  decided  by  this  case,  that  an  equity  of  redemption  in 
fee  should  be  administered  as  equitable  assets.  Had  the  ancestor  been 
seised  of  the  legal  fee,  Lord  Hardwicke  held;  that,  as  the  legal  descent 
r*rQl  1  "^o^^*!  ^ot  *have  been  broken  by  the  equitable  charge,  the  bond 
L  -I  creditor  might  at  laio  have  recovered  his  debt  against  the  heir ; 
and  thus,  having  a  claim  deliors  the  will,  would  have  been  preferred  to 
the  simple-contract  creditors,  who  had  only  a  title  under  the  will.  But 
the  ancestor  was  seised,  not  of  the  legal  fee,  but  of  an  equity  of  redemji- 
tion;  and  against  the  heir  of  such  an  interest  the  bond  creditor  had  no 
action  at  law,  but  only  a  remedy  in  chancery.  Now  the  equitable  right 
was  to  be  made  strictly  analogous  to  the  legal  right;  and  as  at  law  the 
bond  creditor  could  only  have  sued  the  lieir,  and  not  the  devisee  for  pay- 
ment of  dehts,  the  question  for  consideration  was,  whether  the  equitable 
interest  had  descended  or  been  devised.  The  testator,  by  charging  the 
land  with  his  debts  had  certainly  not  broken  the  descent  as  to  the  sur- 
plus interest  that  might  come  to  the  heir;  but,  as  the  debts  exceeded  the 
value  of  the  estate,  he  had  disposed  of  the  icliole  beneficial  interest,  and 
the  bond  creditor  could  have  no  remedy  against  the  heir,  for  there  was 
riens  per  descent :  he  could  only  come  into  equity  with  the  other  cre- 
ditors under  the  equitable  charge;  and  as  an  estate  devised  for  payment 
of  debts  must  be  administered  as  equitable  assets,  the  bond  creditor  had 
no  claim  to  priority.  The  decision  viewed  in  this  light  is  not  at  variance 
with  Lord  Nottingham's  decree  in  Grey  v.  Colvile. 

In  Sharpe  v.  The  Earl  of  Scarborough(i')  a  testator  died  seised  of  an 
equity  of  redemption  in  fee,  and  the  dispute  was  between  the  cre- 
ditors who  had  obtained  judgments  in  the  lifetime  of  the  testator, 
and  the  simple-contract  creditors,  who  claimed  under  a  charge  in  the 
will.     Lord  Loughborough  held,  that,  as  the  judgment  creditors  might 

{t)  This  does  not  appear  in  the  short  note  of  the  case  in  Bunb.  339. 
(m)  Viz.  of  Fraudulent  Devises,  3  W.  &  M.  c.  14.     But  quaere,  if  the  10th  section 
of  the  Statute  of  Frauds,  29  Car.  2,  c.  3,  was  not  meant. 
{v)  4  Yes.  538. 


PROPERTIES    OF    CESTUI'S    QUE    TRUST    ESTATE,     555 

have  redeemed  according  to  their  priorities,  they  had  liens  upon  the 
estate,  and  were  therefore  entitled  to  preference.  This  was  the  single 
point  determined,  though  the  case  has  often  been  cited  in  support  of  the 
doctrine  just  advocated  that  an  equity  of  redemption  in  fee  shall  be 
administered  as  legal  assets. 

Before  concluding  the  subject  under  discussion,  we  must  advert  to  the 
late  statute  for  the  more  effectual  payment  of  debts. (if) 

*The  act  is  entitled  "  Kn  act  to  render  freehold  and  copyhold  i-scpqqt 
estates  assets  for  the  payment  of  simple  contract  debts ;"  and  it  L  "'J 
is  thereby  declared  that  "  when  any  person  shall  die  seised  of  or  entitled 
to  any  estate  or  interest  in  lands,  tenements,  or  hereditaments,  corporeal 
or  incorporeal,  or  other  real  estate,  whether  freehold,  customaryhold,  or 
copyhold,  which  he  shall  not  by  his  last  will  have  charged  with,  or  de- 
vised subject  to  the  payment  of  his  debts,  the  same  shall  be  assets  to  he 
(ulministered  in  courts  of  equity  for  the  payment  of  the  just  debts  of  such 
persons,  as  well  debts  due  on  simple  contract  as  on  specialty  ;  and  that  the 
heir  or  heirs  at  law,  customary  heir  or  heirs,  devisee  or  devisees  of  such 
debtor,  shall  be  liable  to  all  the  same  suits  in  equity  at  the  suit  of  any  of 
the  creditors  of  such  debtor,  whether  creditors  by  simple  contract  or  by 
specialty,  as  the  heir  or  heirs  at  law,  devisee  or  devisees  of  any  person 
or  persons,  who  died  seised  of  freehold  estates,  was  or  were  before  the 
passing  of  that  act  liable  to  in  respect  of  such  freehold  estates  at  the  suit 
of  creditors  by  specialty  in  which  the  heirs  were  bound  :  provided  always, 
that  in  the  administration  of  assets  xinder  and  hy  virtue  of  this  act  all 
creditors  by  specialty  in  which  the  heirs  are  bound  shall  be  paid  the  full 
amount  of  the  debts  due  to  them  before  any  of  the  creditors  by  simple 
contract,  or  by  specialty  in  which  the  heirs  are  not  bound,  shall  be  paid 
any  part  of  their  demands." 

Upon  the  construction  of  this  statute  the  following  observations 
occur : — 

1.  It  has  been  decided  that  the  words  "  assets  to  be  administered  in 
equity"  mean  only  that  the  creditor  shall  have  his  remedy  in  chancery, 
and  not  at  law,  and  do  not  imply  that  the  estate  shall  be  taken  as  equi- 
table assets.     The  estate  therefore  is  to  be  distributed  as  legal  assets. (x) 

2.  The  express  terms  of  the  act  giving  priority  to  creditors  by  spe- 
cialty in  which  the  heirs  are  bound,  over  creditors  by  specialty  in  which 
the  heirs  are  not  bound,  have,  as  a  matter  of  course,  had  full  effect  given 
to  ihem.(y\ 

(to)  3  &  4  W.  4,  c.  104. 

{x)  Foster  v.  Handlej,  1  Sim.  N.  S.  200;  see  the  judgment  more  fully  reported, 
15  Jur.  73. 

(?/)  Richardson  v.  Jenkins,  1  Drewry,  477. 


556       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


[*G93]  *CH AFTER   XXIV. 

RELIEF    OF    THE    CESTUI    QUE    TRUST    AGAINST    THE    FAILURE    OF    THE 

TRUSTEE. 

We  have  now  pointed  out  in  what  the  estate  of  the  cestui  que  trust  pri- 
marily consists.  We  have  also  examined  what  are  the  incidents  and  pro- 
perties of  it  by  analogy  to  estates  at  law.  It  follows  next  that  we  speak 
of  certain  coUateral  or  suhsidiarij  rights  by  which  the  cestui  que  trust  is 
supported  in  the  enjoyment  of  his  equitable  interest  against  the  various 
accidents  to  which  an  estate,  not  direct,  but  transmitted  through  the 
instrumentality  of  another,  must  necessarily  be  exposed.  In  the  present 
chapter  we  shall  consider  the  force  of  the  maxim,  "  A  trust  shall  not 
fail  for  want  of  a  trustee." 

It  is  a  general  rule  that,  wherever  the  intention  of  the  settlor  can  be 
clearly  collected,  and  there  is  no  want  of  consideration,  the  court  will 
follow  the  estate  into  the  hands  of  the  legal  owner,  not  being  a  purcha- 
ser for  value  without  notice,  and  compel  him  to  give  effect  to  the  trust 
by  the  execution  of  the  proper  assurances. 

Thus,  if  a  devisor  or  settlor  appoint  a  trustee,  who  either  dies  in  the 
testator's  lifetime, (i;)  or  disclaims, (?c)  or  is  incapable  of  taking  the 
estate, (j-)  or  if  the  trustee  otherwise  fjiil,^^)  the  trust  is  not  defeated,  but 
fastens  on  the  conscience  of  the  person  upon  whom  the  legal  estate  has 
descended.  ''  I  take  it,"  said  Lord  Chief  Justice  Wilmot,  «'  to  be  a  first 
r^ron  ^°^  fundamental  ^principle  in  equity,  that  the  trust  folloics  the 
L  J  legal  estate  ivheresoever  it  goes,  exce^^t  it  come  into  the  hands  of 
a  purchaser  for  valuable  consicleration  without  notice.  I  never  heard 
any  distinction  made,  nor  has  any  case  been  cited  to  prove,  that  a  trust, 
fit  and  proper  to  be  executed  against  a  trustee,  should  be  suffered  to  fall 
to  the  ground,  and  remain  unexecuted  against  an  heir  at  law,  where 
there  was  no  trustee.  The  lapse  of  the  legal  estate  never  has  the  least 
influence  upon  the  trusts  to  which  it  is  subject.  Trust  estates  do  not 
depend  upon  the  legal  estate  for  an  existence.  A  court  of  equity  con- 
siders devises  of  trusts  as  distinct  substantive  devises,  standing  on  their 
own  basis,  independent  of  the  legal  estate  or  of  one  another  :  and  the 
legal  estate  is  nothing  but  the  shadow,  which  always  follows  the  trust 
estate  in  the  eye  of  a  court  of  equity.''^,;) 

So,  if  a  testator  direct  a  sale  of  his  lands  for  certain  purposes,  but  omit 
to  name  a  person  to  sell,  the  trust  attaches  upon  the  conscience  of  the 
heir,  and  he  is  as  strictly  bound  to  carry  the  intention  into  effect,  as  if 
he  were  a  trustee  regularly  appointed. (a) 

{v)  Moggridge  v.  Thackwell,  3  B.  C.  C.  528  ;  S.  C.  1  Ves.  jun.  475,  per  Lord 
Thurlow  ;  Attorney-General  v.  Downing,  Amb.  552,  admitted. 

{w)  Backhouse  v.  Backhouse,  V.  C.  of  Eng.  20  Dec.  1844. 

{x)  Sonley  v.  Clockmakers'  Company,  1  B.  C.  C.  81 ;  Anon,  case,  2  Vent.  349  ; 
White  V.  Baylor,  10  Ir.  Eq.  Re.  53,  54. 

(y)  Attornej'-General  v.  Stephens,  3  M.  &  K.  347. 

(2)  Attorney-General  v.  Lady  Downing,  Wilm.  21,  22. 

(a)  First  clearly  settled  in  Pitt  v.  Pelham,  Freem.  134. 


RELIEF    OF    THE    CESTUI    QUE    TRUST.  557 

So,  if  lauds  be  devisecl,(6)  or  a  sum  of  money  be  bequeathed,(6')  to  a 
feme  covert  for  her  sole  and  separate  use,  but  without  the  interposition 
of  a  trustee,  the  property  vests  at  law  in  the  husband,  but  in  eq^uity  he 
holds  upon  trust  for  the  separate  use  of  the  wife. 

We  have  seen,  in  a  former  chapter,  that  powers  are  distributable  into 
arhitvary  and  Imperative^  and  that  powers  vmjjerative  do  in  reality  par- 
take of  the  nature  of  trusts.  Upon  this  ground  the  court  protects  a  ces- 
tui que  trust  from  the  failure  of  the  donee  of  a  power  imperative,  as  it 
would  do  from  the  failure  of  any  other  trustee.  "  If,"  said  Lord  Eldon, 
"the  *power  be  one  which  it  is  the  duty  of  the  party  to  exe-  r^-por-i 
cute — made  his  duty  by  the  requisition  of  the  will — put  upon  L  '  J 
him  as  such  by  the  testator,  who  has  given  him  an  interest  extensive 
enough  to  enable  him  to  discharge  it,  he  is  a  trustee  for  the  exercise  of 
the  power,  and  not  as  having  a  discretion  whether  he  will  exercise  it  or 
not ;  and  the  court  adopts  the  principle  as  to  trusts,  and  will  not  permit 
his  negligence,  accident,  or  other  circumstance  to  disappoint  the  interests 
of  those  for  whose  benefit  he  is  called  upon  to  execute  \t."((l\  "  As  to 
the  objection,"  said  Lord  Chief  Justice  Wilmot,  "  that  these  powers  are 
personal  to  the  trustees,  and  by  their  deaths  become  unexecutable,  they 
are  not  powers,  but  trusts,  and  there  is  a  very  essential  difference  between 
them.  Poivers  are  never  imperative — they  leave  the  act  to  be  done  at 
the  will  of  the  party  to  whom  they  are  given.  Trusts  are  always  impe- 
rative, and  are  obligatory  upon  the  conscience  of  the  party  intrusted. 
This  court  supplies  the  defective  execution  of  powers,  but  never  the  non- 
execution  of  them,  for  they  are  meant  to  be  optional.  But  the  person 
who  creates  a  trust  means  it  should  at  all  events  be  executed.  The  indi- 
viduals named  as  trustees  are  only  the  nominal  instruments  to  execute 
that  intention,  and  if  they  fail,  either  by  death,  or  by  being  under  dis- 
ability, or  by  refusing  to  act,  the  constitution  has  provided  a  trustee. 
Where  no  trustees  are  appointed  at  all,  this  court  assumes  the  office  in 
the  first  instance,  and  in  the  event  which  hath  happened  it  is  the  same 
as  if  no  trustees  had  been  appointed  at  all.  There  is  some  personality 
in  every  choice  of  trustees;  but  this  personality  is  res  unius  cetatis,  and, 
if  the  trust  cannot  be  executed  through  the  medium  which  was  in  the 
primary  view  of  the  testator,  it  must  be  executed  through  the  medium 
which  the  constitution  has  substituted  in  its  place.  A  college  was  to  be 
founded  under  the  eye  of  five  trustees :  that  cannot  be  :  the  death  of  the 
trustees  frustrates  that  medium.  What  then  ?  Must  the  end  be  lost 
because  the  means  are  by  the  act  of  God  become  impossible  ?  Suppose 
the  question  had  been  asked  the  testator,  <  If  the  trustees  die  or  refuse 
to  act,  do  you  mean  no  college  at  all,  and  the  heirs  to  take  the  estate  V 
No  :  I  *trust  them  to  execute  my  intention  :  I  do  not  put  it  into  r^^pop-, 
their  power  whether  my  intention  shall  ever  take  place  at  all. "(e)  L     '    J 

(b)  Bennet  v.  Davis,  2  P.  W.  316 ;  Major  v.  Lansley,  2  R.  &  M.  355. 

(c)  RoUfe  V.  Budder,  Bunb.  187  ;  Tappenden  v.  Walsh,  1  Phillim.  352 ;  Prit- 
chard  v.  Ames,  1  Turn.  &  Russ.  222 ;  Parker  v.  Brooke,  9  Yes.  583  ;  and  see 
Roberts  v.  Spicer,  5  Mad.  491 ;  Wills  v.  Sayers,  4  Mad.  409  ;  Rich  v.  Cockell,  9 
Ves.  375.  At  first  there  was  some  doubt:  Harvey  v.  Harvey,  1  P.  W.  125  ;  Burton 
V.  Pierpoint,  2  P.  W.  78.  {d)  Brown  v.  Hlggs,  8  Ves.  574. 

(e)  Attorney-General  v.  Lady  Downing,  Wilm.  23. 

April,  1858.— 3G 


558  LEWIN    ON    THE    LAW    OF    TKUSTS,    ETC. 

If  trustees,  then,  have  such  a  discretion  committed  to  them,  and  they 
either  die  ia  the  testator's  lifetime, (/)  or  decline  the  office, (5')  or  disagree 
among  themselves  as  to  the  mode  of  execution, (A)  or  do  not  declare  them- 
selves before  their  death,(/)  or  if  from  any  other  circumstance,(/L-)  the 
exercise  of  the  power  by  the  party  intrusted  with  it  become  impossible, 
the  court  will  substitute  itself  in  the  place  of  the  trustees,  and  will  exer- 
cise the  power  by  the  most  reasonable  rule.  And  the  court  will  take  up 
the  trust,  whatever  difficulties  or  impracticabilities  may  stand  in  the 
way  ',(1)  for  as  Lord  Kenyon  laid  down  the  rule  strongly,  if  the  trust  can 
hy  any  iwssihiliti/  be  exercised  by  the  court,  the  non-execution  by  the 
trustee  shall  not  prejudice  the  cestuis  que  trust. (mj 

In  what  mode  the  court  will  execute  the  power  will  vary  according  to 
the  circumstances  of  the  case. 

Where  the  discretion  of  the  trustee  is  to  be  governed  hy  some  ride,  or 
to  be  measured  by  a  state  of/acts,  which  the  court  can  inquire  into  as 
effectually  as  a  private  person,  then  the  court  can  "look  with  the  eyes 
of  trustees,"  and  will  substitute  its  own  judgment  for  that  of  the  indi- 
vidual. 

Thus,  in  Hewett  v.  IIewett,(?z)  a  power  was  given  to  the  successive 
tenants  for  life  "  to  cut  such  trees  and  wood  growing  upon  the  premises 
as  A.,  B.,  C,  and  D.,  or  the  survivors  or  survivor  of  them,  should  assign, 
allow,  or  direct  by  any  writing  under  their  hand."  All  the  trustees  died, 
and  the  difficulty  was,  whether  the  power  to  cut  timber  had  not  thus 
r*PQ71  ^6^^™^  *extinguished;  but  Lord  Northington  said,  "  The  trustees 
L  J  were  interposed  as  supervisors  only  :  it  is  absurd  to  suppose  the 
testator  meant  his  trustees  should  have  an  arbitrary  volition,  whether  the 
several  tenants  for  life  should  have  any  benefit  of  the  fall  of  timber.  If 
a  bill  had  been  brought  against  the  trustees  to  assign,  allow,  or  direct 
timber,  mature,  and  fit,  to  be  cut,  would  it  have  been  an  answer,  We  do 
not  think  fit  to  allow  it — stat  p)T0  ratione  voluntas  ?  I  think  the  court 
would  not  have  been  satisfied  with  such  an  answer.  It  is  the  duty  of  this 
(iourt,  and  of  all  courts,  to  give  devises,  as  far  as  their  respective  juris- 
dictions admit,  their  full  and  specific  execution.  The  office  of  these 
trustees  is  not  confined  to  any  personal  qucdification,  hut  such  as  is  gene- 
ral and  may  he  suhstituted,  viz.,  to  see  what  is  fit  and  proper  to  be  cut." 
His  lordship  therefore  directed  a  reference,  what  timber  and  wood  was 
mature  and  fit,  and  that  such  should  be  felled  with  the  approbation  of 
the  master. 

In  another  case  a  power  was  given  to  trustees  to  apply,  with  the  appro- 

(/)  Attorney-General  v.  Lady  Downing,  Wilm.  1 ;  S.  C.  Amb.  550  ;  Attorney- 
General  V.  Hickman,  2  Eq.  Ca.  Ab.  193. 

[g)  Doyley  v.  Attorney-General,  2  Eq.  Ca.  Ab.  194 ;  Jude  v.  Worthington,  3  De 
Gex  &  Sm.  389. 

{h)  Moseley  v.  Moseley,  Rep.  t.  Finch,  53,  and  see  Wainwright  v.  Waterman,  1 
Ves.  jun.  311. 

{i)  Hewett  v.  Hewett,  2  Ed.  332;  Flanders  v.  Clark,  1  Ves.  10,  per  Lord  Hard- 
wicke ;  Harding  v.  Glyn,  1  Atk.  469 ;  Ray  v.  Adams,  3  M.  &  K.  243,  per  Lord 
Langdale ;  Grieveson  v.  Kirsopp,  2  Keen,  653;  Croft  v.  Adam,  12  Sim.  639. 

{k)  Attorney-General  v.  Stephens,  3  M.  &  K.  347. 

{I)  Pierson  v.  Garnet,  2  B.  C.  C.  46,  per  Lord  Kenyon. 

(m)  Brown  v.  Higgs,  5  Ves.  505.  (w)  2  Ed.  332. 


RELIEF    OF    THE    CESTUI    QUE    TRUST.  559 

bation  of  the  father  and  mother,  the  dividends  of  certain  stock  to  the 
maintenance  of  the  children.  There  was  a  failure  of  trustees.  Lord 
Eldon  said,  '<  the  intention  was  that,  if  it  should  he  j^roper  the  interest 
should  be  applied  in  maintenance,  the  trustees  should  have  the  power. 
In  this  instance  there  were  no  trustees,  at  least  none  who  have  been  act- 
ing, and  that  circumstance  imposes  upon  the  court  the  necessity  of 
examining  strictly  what  the  trustees  ought  to  have  done.  I  shall,  there- 
fore direct  a  reference  to  the  master,  whether  it  would  have  been  reason- 
able and  proper  for  any  trustee  or  trustees,  acting  in  the  execution  of  the 
will,  to  apply  the  interest  towards  the  maintenance  of  the  children. (o) 

But  the  principal  authority  upon  this  subject  is  the  case  of  Gower  v. 
Mainwaring.(/j)  John  Mainwaring  executed  a  trust  deed,  by  which  the 
trustees  were  to  give  the  residue  of  the  real  and  personal  estate  among 
the  settlor's  relations  where  they  should  see  most  necessity,  and  as  they 
shoidd  think  most  equitable  and  just.  Two  of  the  trustees  died,  and, 
the  third  refusing  to  act,  it  was  discussed,  how  far  the  discretion  r^i^pnoT 
*of  the  trustees  could  be  vicariously  exercised  by  the  court.  L  -i 
Lord  Hardwicke  said,  "  what  differs  it  from  the  cases  mentioned  is  this, 
that  here  is  a  i-ule  laid  down  for  the  trust.  Wherever  there  is  a  trust  or 
power — for  this  is  a  mixture  of  both — I  do  not  know  the  court  can  put 
itself  in  the  place  of  those  trustees,  and  exercise  that  discretion.  Where 
trustees  have  power  to  distribute  generally  according  to  their  discretion 
withotit  any  object  pointed  out  or  rule  laid  dow7i,  the  court  interposes 
not ;  unless  in  case  of  a  charity,  which  is  diiferent,  the  court  exercising 
a  discretion  as  having  the  general  government  and  regulation  of  charity. 
But  here  is  a  rule  laid  down :  the  trustees  are  to  judge  on  the  necessity 
and  occasions  of  the  family  :  the  court  can{q\  judge  of  such  necessity  : 
that  is  a  judgment  to  be  made  of  facts  existing,  so  that  the  court  can  make 
the  judgment  as  well  as  the  trustees ,  and  lohen  informed  by  evidence  of 
the  necessity,  can  judge  what  is  equitable  and  just  on  this  necessity." 
And  his  lordship  decreed  a  division  among  the  relations  (such  relations 
to  be  restricted  to  those  within  the  Statute  of  Distributions)  according 
to  their  necessities  and  circumstances,  which  the  master  should  inquire 
into,  and  consider  how  it  might  be  most  equitably  and  justly  divided. (?•)(!) 

(0)  Maberley  v.  Turton,  14  Ves.  499.  (j))  2  Vcs.  87. 

(q)  In  Mr.  Belt's  edition  of  Vescy  there  is  the  strange  misprint  of  "  cannot  judge.'' 
(r)  2  Ves.  110;  and  see  Liley  v.  Hey,  1  Hare,  580. 

(1)  The  execution  of  the  power  in  this  case  in  favor  of  the  settlor's  relations 
within  the  Statute  of  Distributions,  according  to  their  necessities,  leads  us  to 
observe  upon  the  construction  of  a  direct  bequest  to  a  person's  "poor  or  necessitous 
relations."  It  is  commonly  thought  that  the  epithet  "  poor,"  "  necessitous,"  or  the 
like,  is  merely  nugatory ;  but  on  consideration  there  will  appear  to  be  a  prepon- 
derating weight  of  authority  in  favour  of  the  contrary  doctrine.  It  is  perfectly 
settled,  notwithstanding  a  case  in  which  Lord  Hardwicke  is  said  to  have  held 
otherwise,  (Attorney-General  v.  Buckland,  cited  1  Ves.  231,  Amb.  71,)  that  "rela- 
tions," though  accompanied  with  the  words  "  poor,"  "  necessitous,"  or  the  like, 
will  be  restricted  to  those  within  the  Statute  of  Distributions.  The  only  question, 
therefore,  is  whether  as  among  those  within  the  statute  expressions  of  tiiis  kind  will 
not  be  allowed  their  effect.  In  a  case  reported  by  Peere  Williams  (Anon  case,  1 
P.  W.  327,)  the  bequest  was  to  "jooor  relations,"  and  the  Countess  of  Winchelsea, 
one  of  the  next  of  kin,  was  allowed  a  share,  in  regard  the  word  "poor"  was  fre- 


560       LEWIN  ON  THE  LAW  OF  TKUSTS,  ETC. 

*Where  the  settlor  lias  given  no  rule  or  measiireh^  which  the 
[*699]  ,-ijggj.gfjoQ  jg  to  be  governed,  the  court  cannot  in  that  case  act 
upon  mere  caprice,  but  will  execute  the  power  by  the  most  reasonable 
and  intelligible  rule  that  the  circumstances  of  the  case  will  admit. 

Upon  ordinary  occasions  the  court  proceeds  upon  the  *maxim, 
\^'^^^  t}iat  equality  is  equity.  Thus  in  Doyley  v.  Attorney-General(s) 
a  testator  gave  his  real  and  personal  estate  to  trustees  upon  trust  to  dis- 
pose thereof  to  such  of  his  relations  of  his  mother's  side  who  were  most 
deserving,  and  in  such  manner  as  they  should  think  fit,  and  for  such 
charitable  uses  aud  purposes  as  they  should  also  think  most  proper  and 
convenient;  and  the  power  having  devolved  upon  the  court,  Sir  J. 
Jekyll  directed,  that  one  moiety  of  the  personal  estate  should  go  to  the 
relations  of  the  testator  on  the  mother's  side,  and  the  other  moiety  to 

(s)  2  Eq.  Ca.  Ab.  195.  See  Down  v.  TTorrall.  1  M.  &  K.  561 ;  but  the  two  sets 
of  objects  were  connected  not  by  "  and,"  but  by  "  or."  It  will  be  observed  that 
Doyley  v.  Attorney-General,  was  not  cited. 


quently  used  as  a  term  of  endearment  r.nd  compassion,  rather  than  to  signify 
indigence.  It  is  evident  that  this  case  can  have  no  application  where  the  word 
•'poor"  is  not  of  doubtful  meaning,  but  is  clearly  to  be  taken  in  the  sense  of 
poverty  and  necessity.  In  Widmore  v.  Woodroffe,  Amb.  636,  the  testator  had 
given  a  third  of  the  residue  to  be  distributed  '-amongst  the  most  necessitous  of 
his  relations."  There  was  only  one  relation  tvithin  the  Statute  of  Distributions,  and 
it  was  held  that  such  relation  was  exclusively  entitled.  The  only  point  decided, 
therefore,  was,  that  the  addition  of  the  term  "  necessitous"  would  not  extend  the 
construction  of  the  word  ••'  relations"  to  those  out  of  the  statute,  and  to  this  single 
question  were  the  observations  of  Lord  Camden  addressed.  "  Several  cases,"  he 
said,  "  have  been  cited,  all  proceeding  upon  the  same  ground,  making  the  Statute 
of  Distributions  the  rule  to  prevent  an  inquiry  which  would  be  infinite,  aud  would 
extend  to  i-elations  ad  infinitum :  the  court  cannot  stop  at  any  other  line.  Thus  it 
would  clearly  stand  on  the  word  '  relations,'  and  the  word  '  poor'  being  added 
makes  no  difference.  There  is  no  distinguishing  between  the  degrees  of  poverty, 
and  therefore  the  court  has,  as  was  unanswerably  argued,*  construed  the  will  as 
if  the  word  'poor'  were  not  in  it."  Thus  there  appears  to  be  no  authority  for 
holding  the  words  to  be  nugatory  as  among  the  relations  tvithin  the  statute,  while 
on  the  contrary  side  of  the  question  there  are,  as  we  shall  see,  two  direct  decisions. 
In  Brunsden  v.  Woolredge,  Amb.  507,  a  testator  gave  5001.  to  be  distributed 
amongst  his  mothers  poor  relations,  and  Sir  T.  Sewell  directed  the  fund  to  be 
distributed  amongst  the  poor  relations  of  the  mother  within  the  statute  zvho  ivere 
objects  of  charity.  In  Mahon  v.  Savage,  1  Sch.  &  Lef.  Ill,  we  have  the  authority 
of  Lord  Redesdale  equally  in  point.  A  testator  gave  lOOOZ.  to  be  distributed 
amongst  his  poor  relations,  or  such  other  objects  of  charitj'  as  should  be  mentioned 
in  his  private  instructions  to  his  executors.  No  instructions  were  left,  and  Lord 
Redesdale  held,  that  Lynam,  one  of  the  next  of  kin  within  the  statute,  was  not  entitled 
to  a  share,  unless  he  was  a  poor  person  at  the  time  of  the  payment  of  the  legacy. 
We  may  also  add  the  dictum  of  Lord  Thurlow  in  Green  v.  Howard,  1  B.  C.  0.  33 : 
— "The  word  'relations,'"  he  said,  "must  be  confined  to  the  statute,  but  not 
always  in  the  proportions  of  the  statute:  where  the  testator  has  said,  to  relations 
according  to  their  greater  need,  the  court  has  shown  particular  fiivour  to  one."  The 
argument  that  the  court  cannot  distinguish  between  the  degrees  of  poverty  as 
amongst  the  relations  within  the  statute  is  also  answered  by  the  case  of  Gower  v. 
Mainwaring,  cited  in  the  text,  in  which  a  direction  for  such  a  distinction  was 
actually  made. 

*  By  referring  to  the  arguments  of  the  counsel,  it  will  clearly  appear  in  what 
sense  his  lordship  meant  to  employ  the  words  "  there  is  no  distinguishing  between 
the  degrees  of  poverty,"  viz.  as  among  the  relations  ad  infinitum,  not  as  among  the 
relations  within  the  statute. 


RELIEF    OF    THE    CESTUI    QUE    TRUST.  561 

charitable  uses,  the  known  rule  that  equality  is  equity  being,  he  said, 
the  best  rule  to  go  by.  He  said  he  had  no  rule  of  judging  of  the  merits 
of  the  testator's  relations,  and  could  not  enter  into  spirits,  and  therefore 
could  not  prefer  the  one  to  the  other,  but  all  should  come  in  without  dis- 
tinction. 

With  respect  to  the  subject  under  consideration,  the  cases  in  which 
the  donor's  intention  is  expressed  in  the  words  of  a  gift,  may  admit  of 
distinction  from  those  in  which  it  is  expressed  in  the  words  of  aj^oicer. 

If  a  fund  be  limited  "  upon  trust  for  the  children  of  A.  as  B.  shall 
appoint,"  the  construction  appears  to  be,  that  the  children  of  A.  take  a 
vested  interest  by  the  ffi/f,  subject  to  be  divested  by  the  exercise  of  the 
power.  Therefore,  on  failure  of  the  power,  the  children,  who  were  the 
objects  of  the  power,  become  absolutely  entitled,  just  as  if  the  discretion 
had  never  been  annexed. (^)  But  if  the  power  given  to  B.  be  testamen- 
tary only,  that  circumstance  affords  a  ground  for  construing  the  gift  to 
the  children  as  a  gift  to  those  only  who  might  be  living  at  B.'s  death. (w) 

Where,  however,  an  estate  is  vested  in  trustees  ''  upon  trust  to  dis- 
pose thereof  among  the  children  of  A.,"  in  this  case  the  children  take 
nothing  by  way  of  gi/f,  but  the  transmission  of  their  interest  must  be 
through  the  medium  of  the j)oice7\  *If  the  trust  be  to  distribute  i-^ya-i-i 
equally  among  the  objects,  the  bequest,  though  in  the  form  of  a  L  J 
power,  must  be  tantamount  to  a  simple  giftjfy)  and  if  the  trustees  be  at 
liberty  to  distribute  imcqually ,  and  make  no  distribution,  the  court, 
though  this  was  long  doubted,  itself  executes  the  power,  and  divides  the 
fund  equally  amongst  the  objects  of  it.(ic) 

But  further,  a  discretion  may  be  given  to  the  trustee,  not  only  in 
respect  of  the  proportions  to  be  appointed,  but  also  in  respects  of  the 
objects  to  whom  the  appointment  is  to  be  made ;  as  where  a  fund  is 
bequeathed  to  trustees  with  a  discretionary  power  of  distribution  to  suclc 
of  a  class  as  the  trustees  shall  think  fit. 

In  cases  of  this  description  the  question  first  to  be  resolved  is,  Did  the 
settlor  intend  to  communicate  a  mere  power  or  to  create  a  trust? 

In  Harding  v.  Glyn(x)  a  testator  gave  to  Elizabeth  his  wife  a  house 
and  certain  goods  and  chattels,  but  *'  desired  her  at  or  before  her  death, 
to  give  the  same  unto  and  amongst  such  of  the  testator's  relations  as  she 
should  think  most  deserving  and  approve  of."  The  wife  died  without 
having  executed  the  appointment,  and  the  court  considered  the  discre- 
tion as  imperative,  and  divided  the  estate  equally  amongst  the  testator's 
relations  living  at  the  time  of  the  wife's  death. 

In  The  Duke  of  Marlborough  v.  Lord  Godolphin(_y)  a  testator  by  his 

{t)  Davy  V.  Hooper,  2  Vern.  665 ;  Fenwick  v.  Greenwell,  10  Beav.  412 ;  Madoc 
v.  Jackson,  2  B.  C.  C.  588;  Hockley  v.  Mawbey,  1  Ves.  jun.  143,  see  149,  150; 
Jones  V.  Torin,  6  Sim.  255,  &c.;  Falkner  v.  Lord  Wynford,  9  Jur.  1006. 

{u)  Woodcock  V.  Renneck,  4  Beav.  196;  1  Phil.  72. 

(v)  Phillips  V.  Garth,  3  B.  C.  0.  64 ;  Rayner  v.  Mowbray,  lb.  234. 

{w)  Hands  v.  Hands,  cited  Swift  v.  Gregson,  1  T.  R.  437,  note;  Pope  v.  Whit- 
combe,  3  Mer.  689,  corrected  from  Reg.  Lib.  2  Sug.  Powers,  650,  6th  ed. ;  Walsh 
V.  Wallinger,  2  R.  &  M.  78 ;  S.  C.  Taml.  425  ;  Grieveson  v.  Kirsopp,  2  Keen,  653  ; 
Brown  v.  Pocock,  6  Sim.  257;  Finch  v.  HoUingsworth,  21  Beav.  112. 

{x)  1  Atk.  469,  stated  from  Reg.  Lib.;  Brown  v.  Higgs,  5  Ves.  501. 

[y)  2  Ves.  61. 


562       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

will  gave  30,0007.  to  his  wife,  but  by  a  codicil  (without  date)  gave  it  to 
her  for  life  only,  and  after  her  decease  to  be  divided  and  distributed  to 
and  amongst  such  of  his  children,  and  in  such  manner  and  proportions, 
as  she  by  deed  or  will  should  direct  or  appoint.  The  wife  by  will 
appointed  17,0007.  between  two  of  the  children  who  died  in  her  lifetime. 
The  sum  appointed  having  failed  by  lapse,  it  was  questioned  whether  it 
should  sink  into  the  testator's  estate,  or  belong  to  the  children  as  cestuis 
que  trust.  Lord  *Hardwicke  considered,  that  as  the  gift  in  the 
L  '^-'J  loiU  was  an  absolute  legacy  to  the  wife,  the  intention  of  the 
codicil  was  not  to  provide  for  the  children,  but  to  secure  their  respect 
and  duty  to  the  wife  by  investing  her  with  a  power  :  that  no  interest 
vested  in  the  children  independently  of  any  appointment,  and  therefore 
the  sum  that  lapsed  should  fall  into  the  residue. 

These  two  cases  were  the  subject  of  much  discussion  in  Brown  v. 
Higgs,(2;)  in  which  a  testator  gave  certain  leaseholds  to  John  Brown 
upon  trust,  (after  payment  of  certain  charges  thereon,)  "  to  employ  the 
rents  to  such  of  the  children  of  the  testator's  nephew  Samuel  Brown  as 
the  said  John  Brown  should  think  most  deserving,  and  that  would  make 
the  best  use  of  it,  oi'  to  the  childreu  of  the  testator's  nephew  William 
xlugustus  Brown,  if  any  such  there  were  or  might  be."  John  Brown 
died  in  the  testator's  lifetime.  Lord  Alvanley  said,  "  The  question  is, 
whether  the  surplus  rents  are  a  gift  to  all  the  children,  or  to  such  of 
them  only  as  the  testator's  nephew  John  Brown,  who  died  in  his  life- 
time, should  appoint.  If  the  former  can  be  collected  as  his  intention, 
the  death  of  the  trustee  will  make  no  diiference :  if  that  intention  cannot 
be  collected,  the  selection  not  having  taken  place,  whatever  the  reason 
of  its  failing  may  be,  the  bequest  must  fail  with  it.  Upon  the  true  con- 
struction of  this  will,  I  am  of  opinion  it  is  equivalent  to  saying  he  gives 
it  to  the  children  of  Samuel  Brown  or  of  William  Augustus  Brown,  with 
a  power  to  John  Brown  to  select  any  he  thinks  fit  and  to  exclude  the 
others."  His  lordship,  therefore,  declared  the  fund  to  have  been  well 
bequeathed  in  trust  for  all  the  children  of  Samuel  Brown  and  William 
Augustus  Brown.  The  cause  was  reheard  before  his  lordship,  who, 
.after  grave  consideration  of  the  subject,  decreed  as  before. (a)  The 
decree  was  afterwards  affirmed  on  appeal  by  Lord  EIdon,ri)  and  again 
affirmed  in  the  house  of  lords. (c) 

"  The  Duke  of  Marlborough  v.  Lord  Godolphin,"  said  Lord  Eldon, 
r*7nm  "  ^^  certainly  very  difficult  to  reconcile  with  Harding  v.  *Glyn 
L  J  or  Brown  v.  Higgs ;  but  the  question  is  not,  whether  one  case 
is  to  be  reconciled  with  others,  but  whether  all  the  cases  have  gone  upon 
a  principle  which  professes  to  save  whole  Harding  v.  Grlyn,  Lord  Hard- 
wicke,  in  The  Duke  of  Marlborough  v.  Lord  Godolphin  does  not  say, 
that  where  there  is  a  power,  and  it  is  made  the  duty  of  the  party  to  exe- 
cute it,  and  he  would  not  execute  it,  in  such  a  case  this  court  would  not 
act,  but  he  collected  from  the  scope  and  object  of  the  disposition  taken 
altogether  that  it  was  a  case,  in  which  the  person  having  a  power  to  dis- 
pose of  the  sum  of  30,0007.  had  a  mere  power,  not  clothed  with  any  duty 

(2)  4  Ves.  708.  (a)  5  Ves.  495.  (i)  8  Ves.  561.  (c)  18  Yes.  192. 


RELIEF  OF  THE  CESTUI  QUE  TRUST.       563 

requiring  her  to  esecute  it,  and  tlierefore,  as  to  what  was  not  disposed 
of,  the  court  could  not  interfere." ((7)  The  doctrine  of  Harding  v.  Glyn, 
which  has  since  been  confirmed  by  other  authorities,(<:)  may  now  be 
considered  as  indisputably  established.  The  rule,  as  laid  down  by  Lord 
Cottenham,  was  thus  expressed,  that  "  when  there  appears  a  general 
intention  in  favour  of  individuals  of  a  class  to  be  selected  by  another 
person,  and  the  particular  intention  fails  from  that  selection  not  being 
made,  the  court  will  carry  into  effect  the  general  intention  in  favour  of 
the  class."(/) 

The  question  in  favour  of  what  objects  a  power  imperative,  whether 
of  distribution  merely,  or  of  selection,  will  be  executed  by  the  court, 
remains  to  be  considered  ;  and  it  is  conceived  that,  in  reference  to  this 
question,  each  kind  of  power  stands  generally  upon  the  same  footing. 
The  following  results  may  be  deduced  from  the  authorities  : 

First.  Where  a  testator  bequeaths  property  with  a  power  imperative 
in  favour  of  a  class,  whether  of  children,  relations,  or  others,  and  it 
appears  to  be  the  intention  that  the  distribution  or  selection  should  take 
place  as  soon  as  conveniently  may  be  after  the  testator's  death  then  the 
court  will  execute  the  power  in  favour  of  the  class  as  existing  at  the 
date  of  the  testator's  death. (</) 

^Secondly.  Where  the/yame  of  the  will  does  not  of  necessity  r*yQ^-i 
point  to  an  immediate  exercise  of  the  power,  as  where  the  donee  L  J 
of  the  power  takes  a  life  estate  expressly,  or  by  implication,  the  nature 
of  the  power  given  to  the  donee  has  to  be  taken  into  consideration. 

1.  If  the  power  is  to  be  exercised  by  will  only,  then,  inasmuch  as  the 
objects  of  the  power  are  necessarily  those  only  living  at  the  death  of  the 
donee,  the  court  executes  the  power  in  favour  of  those  members  of  the 
class  only  who  are  in  esse  at  the  death  of  the  donee.{1i) 

2.  Where,  however,  the  power  given  to  the  tenant  for  life  is  not  merely 
testamentary,  the  question,  whether  the  class  to  take  is  to  be  ascertained 
at  the  death  of  the  testator  or  of  the  donee  of  the  power,  is  involved  in 
considerable  difficulty.  The  decisions  which  support  an  execution  of 
the  power  in  favour  of  the  class  of  objects  as  existing  at  the  death  of 
the  donee,(A  and  those  which  support  an  execution  in  favour  of  the 
class  as  existing  at  the  death  of  the  original  testator, (/.;)  are  almost  evenly 
balanced  :  but  the  apparent  absence  of  any  full  consideration  of  the 

{(I)  Brown  v.  Higgs,  8  Ves.  576. 

(e)  Birch  v.  Wade,  3  V.  &  B.  198;  Burrough  v.  Philcox,  5  M.  &  Cr.  72;  Penny 
V.  Turner,  2  Phill.  493  ;  Walsh  v.  Wallinger,  2  R.  &  M.  78. 

(/)  5  M.  &  Cr.  92. 

{(j)  Brown  v.  Higgs,  4  Ves.  708,  &c. ;  Longman  v.  Broom,  7  Ves.  124.  The 
result  will,  of  course,  be  the  same  where  a  life  estate  being  given  to  the  donee  of 
the  power,  the  donee  dies  in  the  testator's  lifetime.  See  Penny  v.  Turner,  2  Phil. 
493;  Hutchinson  v.  Hutchinson,  13  Ir.  Eq.  Re.  332. 

(/j)  Cruwys  v.  Colman,  9  Vesey,  319;  Birch  v.  Wade,  3  V.  &  B.  198  ;  Walsh  v. 
Wallinger,  2  R.  &  M.  78  ;  Brown  v.  Pocock,  6  Sim.  257;  Burrough  v.  Philcox,  5 
M.  &  Cr.  72;  and  see  the  analogous  cases  of  Woodcock  v.  Renneck,  4  Bear.  190, 
1  Phil.  72;  Finch  v.  Hollingsworth,  21  Beav.  112. 

{i)  Doyley  v.  Attorney-General,  2  Eq.  Ca.  Abr.  195  ;  Harding  v.  Glyn,  1  Atk. 
469 ;  Pope  v.  Whitcombe,  3  Mer.  689,  corrected  from  Reg.  Lib.  2  Sugd.  Pow.  650, 
6th  edit. 

(/t)  Hands  v.  Hands,  cited  1  T.  R.  437,  note;  Grieveson  v.Kirsopp,  2  Keen,  653. 


56-i  LEAVIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

question,  and  the  circumstance  that  in  some  of  the  cases  the  power, 
though  not  expressly  limited  to  an  exercise  by  will,  did  not  in  terms 
authorize  an  execution  by  deed  or  writing,  and  may  perhaps  have  been 
viewed  by  the  court  as  testamentary,  detracts  from  their  value  as 
authorities  upon  this  point. 

Upon  principle,  too,  as  well  as  upon  authority,  the  question  is  a  diffi- 
cult one.  It  may  be  said,  in  support  of  ascertaining  the  class  at  the  death 
of  the  original  testator,  that  the  donee  of  the  power  may  exercise  it  in 
P^.^r-,  favour  of  the  class  existing  at  *the  time  of  exercise,  to  the  exclu- 
L  '  J  sion  of  those  who  have  died  before,  and  also,  where  the  power  is 
one  of  selection,  to  the  exclusion  of  those  who  may  come  into  esse  subse- 
quently, but  that  the  court  cannot  act  arbitrarily,  and  cannot  show  any 
favour,  but  must  observe  equality  towards  all.  Who,  then,  are  the  objects 
of  the  power  ?  As  it  was  not  the  duty  of  the  donee  of  the  power  to 
exercise  it  at  one  time  more  than  another,  the  only  objects  of  the  power 
must  be  all  those  who  might  by  possibility  have  taken  a  benefit  under 
it,  that  is,  those  living  at  the  death  of  the  testator,  and  those  who  come 
into  being  during  the  continuance  of  the  life  estate ;  otherwise,  should 
all  the  class  predecease  the  tenant  for  life  (an  event  not  improbable, 
where  children  or  some  limited  class  of  relations  are  the  objects,)  there 
would  be  a  power  imperative  which  is  construed  as  a  tnist,  and  no  cestui 
que  trust,  a  result  which,  it  is  conceived,  the  court  would  be  somewhat 
unwilling  to  adopt.  On  the  other  hand,  it  is  to  be  observed  that  the 
power  may  properly  be  exercised  by  the  donee  at  any  time  before  death, 
and  there  is  no  obligation  to  exercise  it  earlier,  and  if  any  members  of 
the  class  die  before  the  power  is  exercised,  they,  according  to  the  ordi- 
nary rule,  cease  to  be  objects  of  it.  The  donee  of  the  power,  having  an 
undoubted  right  to  postpone  the  execution  of  it  until  the  last  moment  of 
his  life,  the  only  default  which  the  court  has  to  supply,  is  the  nonexer- 
cise  Just  be/ore  the  death,  and  that  default  must,  therefore,  be  supplied 
in  favour  of  those  who  were  objects  at  the  date  of  the  death  of  the 
donee. 

3.  It  is  clear  that  where  the  donee  tenant  for  life  may  exercise  the 
power  by  deed  or  will,  the  members  of  the  class  in  existence  at  the  date 
of  the  death  of  the  donee  will  alone  take,  if,  upon  the  purview  of  the 
original  instrument,  they  alone  appear  to  be  the  objects  of  the  power.(/) 

It  may  be  useful  to  inquire  more  particularly  in  connection  with  this 
subject,  in  what  manner  the  court  will  execute  a  power  in  favour  of 
<<  relations." 

The  donee  of  the  discretion,  if  he  have  a  power  of  selection,  may  ap- 
r*7nn  P^^^*  ^^  relations  in  any  degree, (?h)  and  it  is  only  in  *those 
L         -I  cases  where  he  has  a  mere  power  of  distribution  that  he  must 

(Z)  Winn  v.  Fenwick,  11  Beav.  438 ;  and  see  Tiffin  v.  Longman,  15  Beav.  275. 

(m)  Snpple  v.  Lowson,  Amb.  729  ;  Grant  v.  Lynam,  4  Russ.  292  ;  Harding  v. 
Glyn,  1  Atk.  469  ;  S.  C.  stated  from  Reg.  Lib.,  Brown  v.  Higgs,  5  Ves.  501 ;  Mahou 
T.  Savage,  1  Sch.  &  Lef.  Ill ;  Cruwys  v.  Colman,  9  Ves.  324,  per  Sir  W.  Grant : 
Spring  V.  Biles,  cited  Swift  v.  Gregson,  1  T.  R.  435,  note  (/).  In  Brunsden  v. 
Woolredge,  Amb.  507,  Sir  T.  Sewell  seems  to  have  confined  the  trustees  to  rela- 
tions within  the  statute,  but  his  opinion  was  otherwise  in  Supple  v.  Lowson,  ubi 
supra. 


RELIEF    OF    TUE    CESTUI    QUE    TRUST.  565 

confine  liimself  to  tlie  relations  within  the  Statute  of  Distribution  of  intes- 
tates' estates. (?i)  But  the  court,  except  where  the  bequest  is  for  the  benefit 
of  poor  relations  by  way  of  founding  a  charity,(o)  or  the  testator  has  fur- 
nished some  intelligible  rule  by  which  the  relations  out  of  the  statute  may 
be  easily  ascertained, (p)  must  in  all  cases  appoint  to  the  relations  within 
the  statute ;  for  as  on  the  one  hand  the  court  cannot  act  arbitrarily  by  select- 
ing particular  objects,  so  on  the  other  it  cannot  execute  the  power  in  favour 
of  relations  in  general,  for  this  would  lead  ad  infinitum. {c[^ 

The  point  still  open  to  discussion  is,  in  what  shares  such  relations 
shall  take — whether  those  who  in  case  of  intestacy  would  have  claimed 
by  representation  shall  under  the  execution  of  the  power  by  the  court 
take  per  stirjjes  or  per  capita. 

Now,  the  rule  that  those  should  be  deemed  relations  who  would  take 
a  distributive  share  under  the  statute  was  adopted,  on  the  ground,  that 
unless  some  line  were  drawn  for  restricting  the  meaning  of  the  word,  a 
bequest  to  relations  would  be  void  *for  uncertainty.  As  this  r>fc7AY-i 
was  the  sole  foundation  for  appealing  to  the  statute  at  all,  it  is  L  J 
evident  the  single  inquiry  for  the  court  is,  who  would  take  a  distributive 
share  :  in  %ohat  proportions  they  would  take  is  wholly  beside  the  ques- 
tion, and  in  fact  beyond  the  court's  jurisdiction  ;  for,  when  the  class  has 
been  ascertained,  the  testator  himself  has  determined  the  proportions 
by  devising  to  the  objects  in  words  creating  a  joint  tenancy. (r)  No  dis- 
tinction can  be  taken  between  real  and  personal  estate ;  yet  it  could 
scarcely  be  held,  that  if  lands  where  devised  to  the  testators  "  relations," 
the  kindred  within  the  statute  would  take  in  unequal  proportions. 

The  result  of  the  authorities  would  seem  to  accord  with  what  is  correct 
upon  principle,  viz.,  that  in  a  gift  to  ^^  relations  "  {whether  the  testator 
has  added  the  words  ^'equally  to  he  divided,"  or  not^  the  distribution 
among  the  relations  within  the  statute  miist  he  made  per  capita,  and  not 
per  stirpes,  (.s)     The  question  with  respect  to  "  next  of  kin"  can  no  longer 

(n)  Isaac  v.  De  Friez,  Amb.  595 ;  but  see  the  case  stated  from  Reg.  Lib.,  Attor- 
ney-General V.  Price,  17  Ves.  373,  note  (a) ;  Carr  v.  Bedford,  2  Ch.  Re.  146 ;  Pope 
V.  Whitcombe,  3  Mer.  G89.  The  last  case,  and  Forbes  v.  Ball,  3  Mer.  437,  were 
both  decided  by  Sir  W.  Grant,  but  appear  to  be  contradictory  ;  however,  in  the 
latter  case  the  question  raised  was,  not  whether  the  donee  had  exceeded  her  power, 
but  whether  the  discretion  was  apoicer  or  a  trust ;  for  if  a  power,  and  it  had  not 
been  executed  by  the  will,  the  fund  would  have  sunk  into  the  residue,  and  the 
plaintiif  have  been  entitled  as  residuary  legatee.  Note,  a  power  of  selection  will 
be  implied  in  the  case  of  "  relations,"  where  it  would  not  have  been  implied  in  the 
case  of  "  children."  Spring  v.  Biles,  and  Mahon  v.  Savage,  supra.  In  the 
latter  case  the  words  were  "  amongst  the  relations,"  but  see  Pope  v.  Whitcombe,  3 
Mer.  689,  where  the  expression  was  similar. 

(o)  See  White  v.  White,  7  Ves.  423;  Attorney-General  v.  Price,  17  Ves.  371; 
Isaac  V.  De  Friez,  lb.  373,  note  {a)  ;  and  see  Mahon  v.  Savage,  1  Sch.  &  Lef.  111. 

{p)  Bennett  v.  Honywood,  Amb.  708. 

(5')  Thus  in  Bennett  r.  Honywood,  ubi  supra,  456  persons  applied  as  relations 
within  two  years. 

(r)  See  Walter  v.  Maunde,  19  Ves.  427,  428. 

(s)  See  Thomas  v.  Hole,  Cas.  t.  Talb.  251 ;  Stamp  v.  Cooke,  1  Cox,  236  ;  Phil- 
lips V.  Gartli,  3  B.  C.  G.  64  ;  Green  v.  Howard,  1  B.  C.  C.  33;  Rayncr  v.  Mowbray, 

3  B.  G.  C.  234,  Reg.  Lib.  B.  1791,  foL  183 ;  Pope  v.  Whitcombe,  3  Mer.  689,  Reg. 
Lib.  B.  1809,  fol.  1535  ;  Hinckley  v.  Maclarens,  1  M.  &  K.  27  ;  Withy  v.  Mangles, 

4  Beav.  358  ;  10  CI.  &  Fin.  215.     The  above  cases  will  be  found  discussed  in  Ap- 
pend. No.  IX. 


566       LEWIN  ON  THE  LAW  OP  TRUSTS,  ETC, 

arise  :  for  by  the  decision  of  Elmsley  v.  Young,  upon  appeal  from  Sir 
J.  Leacli  to  the  late  lords  commissioners, (;;)  tlie  words  "  next  of  kin" 
must  be  construed  to  mean  "  nearest  of  kin,"  to  tbe  exclusion  of  those 
who  would  take  under  the  statute  by  representation. 

We  have  stated  that,  as  a  general  principle,  the  court  will  execute  the 
power  among  the  objects  equally;  but  it  sometimes  happens  that  the 
subject  of  the  gift  is  incapable  of  division,  or  the  settlor  has  expressly 
directed  the  whole  to  be  bestowed  on  one  object  to  be  selected  bythe 
trustee.  In  such  cases  the  court  still  acts  upon  the  maxim,  that,  if  hy 
any  possibility  the  power  can  be  executed,  the  court  will  do  it. 

In  Moseley  v.  Moseley,(i«)  a  very  early  case,  an  estate  was  devised  to 
r*7nsn  *^"stees  upon  trust  to  settle  on  such  of  the  sons  of  *N.  as  the 
L  J  trustees  should  think  fit.  The  trustees  having  neglected  to  com- 
ply with  the  direction,  the  sons  of  N.  filed  a  bill  to  have  the  benefit  of 
the  trust,  and  the  court  decreed  the  trustees,  within  a  fortnight  next  after 
the  entry  of  the  order,  to  nominate  such  one  of  the  plaintiffs  as  they 
should  think  fit,  upon  whom  to  settle  the  lands  of  the  testator ;  and  if  the 
trustees  should  fail  to  nominate  within  that  time,  or  there  should  be  any 
difi'erence  between  them  concerning  such  nomination,  then  the  court 
would  nominate  one  of  the  plaintiff's,  it  being  the  testator's  intent  that 
his  estate  should  not  be  divided,  but  settled  upon  one  person. 

In  Richardson  v.  Chapman (w)  Dr.  Potter,  Archbishop  of  Canterbury, 
gave  all  his  options  to  trustees  upon  trust,  that  in  disposing  thereof 
"  regard  should  be  had  according  to  their  discretions  to  his  eldest  son, 
his  sons  in  law,  his  present  and  former  chaplains,  and  others  his  domes- 
tics, particularly  Dr.  T.,  his  chaplain,  and  Dr.  H.,  his  librarian  ;  also  to 
his  worthy  friends  and  acquaintances,  particularly  to  Dr.  Richardson." 
The  trustee  tried  first  to  give  the  option  in  question  to  himself.  He 
then  fixed  upon  a  person,  with  whom  he  appeared  to  have  made  an 
underhand  bargain.  When  this  failed,  he,  in  breach  of  his  duty,  pre- 
sented a  Mr.  Venner.  On  a  bill  filed  to  set  aside  the  presentation.  Lord 
Northington  considered  the  trust  to  be  of  a  kind  that  the  court  could  not 
execute,  and  dismissed  the  bill.  Dr.  Richardson  appealed  against  this 
decision  to  the  house  of  lords,  and  the  other  person,  who  stood  prior  to 
him,  not  appearing,  the  house  reversed  the  decree,  and  ordered  the  pre- 
sentation to  be  made  to  the  appellant.  <'  This  case,"  says  Lord  uilvanley, , 
''  shows,  that  however  difficult  it  may  be  to  select  the  persons  intended, 
and  though  it  must  depend  from  the  nature  of  the  trust  upon  the  opinion 
of  the  trustees  as  to  the  merit  of  the  persons  who  are  the  objects,  yet  the 
court  will  execute  even  a  trust  of  that  nature,  if  the  trustee  shall  either 
neglect  to  execute,  or  be  disabled  from  executing,  or  shows  by  his  con- 
duct any  intention  not  to  execute  it  as  the  testator  intended  he  should. 
When  one  reads  the  nature  of  this  trust,  how  difficult  it  was  to  make  the 
selection,  it  is  decisive  to  show  *the  court  must  do  it,  though 


[*709] 


the  trust  is  in  its  nature  so  discretionary." ^tc;) 


(0  2  M.  &  K.  780 ;  and  see  Withy  v.  Mangles,  4  Beav.  358  ;  10  CI.  &  Fin.  215. 
(m)  Rep.  t.  Finch,  53;  S.  C.  cited  Clarke  v.  Turner,  Freem.  199. 
\v)  1  B.  P.  C.  318 ;  S.  C.  cited  Brown  v.  Higgs,  5  Ves.  504,  505. 
(w)  Brown  v.  Higgs,  5  Ves.  504. 


RIGHTS    OF    THE    CESTUI    QUE    TRUST.  567 

In  Brown  v.  Higgs(ic)  an  estate  was  devised  "  to  one  of  the  sons  of 
Samuel  Brown,  as  Jolin  Brown  should  direct  by  a  conveyance  in  his  life- 
time, or  by  his  last  will  and  testament ;"  and,  John  Brown  not  having 
executed  the  power,  Lord  Alvanley  was  inclined  to  think,  though  he 
would  not  decide  the  point,  that  the  children  of  Samuel  Brown  could  not 
establish  a  claim  :  but  the  ground  of  this  opinion  was  not  that  a  trust 
had  been  created  which  the  court  could  not  execute,  but  that  the  inten- 
tion -of  the  testator  as  collected  from  the  will  was  to  communicate  a  mere 
jjoioer. 


*CHAPTER    XXV.  [*710] 

THE   RIGHTS   OP   THE   CESTUI   QUE   TRUST   IN  PREVENTION  OP  A  BREACH 

OP   TRUST. 

As  the  estate  of  the  cestui  que  trust  depends  for  its  continuance  upon 
the  faith  and  integrity  of  the  trustee,  it  is  reasonable  that  the  cestui  que 
trust,  whose  interest  is  thus  materially  concerned,  should  be  allowed  by 
all  practicable  means  to  secure  himself  against  the  occurrence  of  any  act 
of  misconduct.  We  shall,  therefore  next  consider  the  rights  of  the  cestui 
que  trust  that  have  a  tendency  to  secure  to  him  this  protection. 

I.  The  cestui  que  trust  is  entitled  to  have  the  custody  and  administra- 
tion of  the  estate  confided  to  the  care  both  of  proper  persons  and  of  a 
proper  number  of  such  persons. 

Thus  if  the  trustee  originally  appointed  by  a  will  happen  to  die  in  the 
testator's  lifetime,  the  cestid  que  trust,  where  such  a  course  would  be  for 
his  interest,  may  have  the  property  better  secured  by  a  conveyance  to  an 
express  trustee  for  himself. 

So,  where  the  original  number  of  trustees  has  become  reduced  by 
deaths,  the  cestui  que  trust  may  restore  the  property  to  its  original  secu- 
rity by  calling  for  the  appointment  of  new  trustees  in  the  place  of  the 
trustees  deceased  ;(a)  and  even  a  cestui  que  trust  in  remainder  may  file 
a  bill  to  have  the  number  of  trustees  filled  up. (6) 

If  a  trustee  refuse  to  act(c)  or  become  so  circumstanced  that  he  cannot 
eflFectually  execute  the  ofiice  (as  where  a  trustee  goes  abroad  to  reside 
permanently,((:/)  or  a  */eme  trustee  marries,(e)  or  the  trustees  of  r:i:7-|-|-] 
a  chapel  entertain  opinions  contrary  to  the  founder's  intention, (/)  L         J 

(x)  4  Yes.  708,  see  TlS,  719  ;  5  Ves.  495,  see  508. 

(a)  Buchanan  v.  Hamilton,  5  Ves.  722  ;  Hibbard  V.  Lambe,  Amb.309. 

(b)  Finlay  v.  Howard,  2  Dru.  &  War.  490. 

(c)  Maggeridge  v.  Grey,  Nels.  42;  Travell  v.  Danvers,  Finch,  380;  Wood  v. 
Stane,  8  Price,  613.     Anon.  4  Ir.  Eq.  Rep.  700. 

{d)  O'Reilly  v.  Alderson,  8  Hare,  101  ;  Re  Ledwich,  6  Ir.  Eq.  Rep.  561 ;  Com- 
missioners of  Charitable  Donations  v.  Archbold,  11  Ir.  Eq.  Rep.  187. 

(c)  Lake  v.  De  Lambert,  4  Ves.  592. 

(/)  Attorney-General  v.  Pearson,  7  Sim.  290,  see  309  :  Attorney-General  v. 
Shore,  lb.  309,  see  317. 


568       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

or  if  the  trustee  become  bankrupt,(^)  or  misconduct  liimself  in  any  man- 
ner, (/i)  (as  by  dealing  with  the  trust  property  for  his  own  personal 
advancement,(i)  by  suffering  a  co-trustee  to  commit  a  breach  of  trust,(7i-) 
or  by  absconding  on  a  charge  of  forgery ;(/)  in  these  and  the  like  cases 
the  cestui  qtie  trust  may  have  the  old  trustee  removed,  and  a  new  trustee 
appointed  in  his  room.  And  in  such  a  suit  it  will  not  be  scandalous  or 
impertinent  to  challenge  a  trustee  for  misconduct,  or  to  impute  to  him 
any  corrupt  or  improper  motive  in  the  execution  of  the  trust,  or  to  allege 
that  his  behaviour  is  the  vindictive  consequence  of  some  act  on  the  part 
of  the  cestui  que  trust,  or  of  some  change  in  his  situation  ;  but  it  will  be 
impertinent,  and  may  be  scandalous,  to  state  circumstances  of  general 
malice  or  personal  hostility.(m)  And  if  the  old  trustee  be  removed  on 
the  ground  of  misconduct,  he  must  bear  the  expense  of  the  conveyance 
to  the  new  trustee,  as  an  act  necessitated  by  himself. («) 

If  the  settlement  require  the  trustees  of  a  charity  to  be  inhabitants  of 
a  particular  place,  it  is  improper  to  appoint  persons  trustees  who  do  not 
answer  that  description,  provided  at  the  time  of  the  election  there  were 
any  inhabitants  proper  to  be  trustees. (o)  But  where  it  has  been  the 
custom  to  appoint  trustees  not  being  inhabitants,  the  court  will  not 
remove  the  existing  trustees,  though  it  will  take  care  that  the  founder's 
directions  are  better  observed  for  the  future  )[p)  and  generally,  though 
r*-i  9-1  trustees  may  have  been  appointed  irregularly  in  the  *first  instance, 
L  "'J  the  cestui  que  trust  cannot  come  for  their  removal  after  an  ac- 
quiescence in  the  nomination  for  a  great  number  of  years. (j) 

The  court  will  not  dismiss  a  trustee  for  the  mere  caprice  of  the  cestui 
que  trust  without  any  reasonable  cause  shown, (r)  or  because  the  trustee 
has  refused  from  honest  motives  to  invest  the  trust  fund  in  a  purchase 
of  leasehold  estate,  where  a  power  for  the  purpose  was  given  to  him  with 
the  consent  of  the  tenant  for  life,  and  the  tenant  for  life  thought  the 
purchase  desirable,(s)  nor  even  if  the  trustee  have  transgressed  the  strict 
line  of  his  duty,  provided  there  was  no  wilful  default,  but  merely  a  mis- 
understanding. (<)  Where,  however,  a  trustee  pertinaciously  insisted  on 
being  continued  in  the  office,  though  his  co-trustees  were  unwilling  to 
act  with  him.  Lord  Nottingham  said,  "  He  liked  not  that  a  man  should 

{g)  Bainbri^ge  v.  Blair,  1  Beav.  495 ;  In  re  Roche,  1  Conn.  &  Laws.  306 :  Com- 
missioners of  Charitable  Donations  v.  Archbold,  11  Ir.  Eq.  Rep.  187  ;  and  if  the 
trustee  compound  with  his  creditors,  it  is  presumed  that  he  may  equally  be  re- 
moved, for  the  cestuis  que  trust  have  a  right  to  have  the  administration  of  the  trust 
estate  committed  to  responsible  persons. 

ill)  Mayor  of  Coventry  T.  Attorney-General,  T  B.  P.  C.  235  ;  Buckridge  v.  Glasse, 
Cr.  &  Ph.  126,  see  131.' 

(^)  Ex  parte  Phelps,  9  Mod.  357.  {k)  Ex  parte  Reynolds,  5  Ves.  707. 

{})  Millard  v.  Eyre,  2  Ves.  jun.  94. 

(m)  Earl  of  Portsmouth  t.  Fellows,  5  Mad.  450. 

\n\  Ex  parte  Greenhouse,  1  Mad.  92. 

(0)  Attorney-General  v.  Cowper,  1  B.  C.  C.  439. 

{p)  Attorney-General  v.  Stamford,  1  Phill.  737. 

[q)  Attorney-General  v.  Cuming,  2  Y.  &  C.  Ch.  Ca.  139,  see  150. 

(r)  O'Keeffe  v.  Calthorpe,  1  Atk.  18  ;  and  sec  Pippin  v.  Tucking,  2  Jones  and 
Lat.  95. 

(«)  Lee  V.  Young,  2  Y.  &  C.  Ch.  Ca.  532. 

(0  See  Attorney-General  v.  Coopers'  Company,  19  Ves.  192  ;  Attorney-General 
V.  Caius  College,  2  Keen,  150. 


RIGHTS    OF    THE    CESTUI    QUE    TRUST.  569 

be  ambitious  of  a  trust  when  he  could  get  nothing  but  trouble  by  it," 
and,  without  any  reflection  on  the  conduct  of  the  trustee,  declared  he 
should  meddle  no  further  in  the  trust. (?/) 

If  there  be  an  arbitrary  power,  with  which  the  original  trustee  was 
invested,  it  is  not  exercisable  by  the  new  trustee  appointed  by  the 
court.  (?;)  And  of  course,  a  trustee  appointed  by  the  court  cannot  exer- 
cise a  legal  power  which  the  original  trustee  could  not  have  assigned;  as 
if  a  power  of  sale  be  given  to  trustees  to  preserve  contingent  remainders, 
and  to  the  survivors  of  them,  and  the  executors  or  administrators  of  the 
survivors,  new  trustees  appointed  by  the  court  cannot  execute  the 
power.  («•) 

As  the  substitution  of  a  trustee  by  the  court  proceeds  upon  a  full 
consideration  of  the  case,  and  is  never  made  unless  the  court  is  satisfied 
as  to  the  fitness  of  the  person  proposed,  it  *cannot  be  expected  |-*--io-i 
that  the  court  should  authorize  the  insertion  of  a  power  in  the  con-  L  J 
veyance  to  the  new  trustees,  enabling  them  to  nominate  other  trustees 
in  their  stead  as  often  as  occasion  may  require  :  this  would  plainly  be  an 
abandonment  by  the  court  of  its  own  jurisdiction — a  delegation  of  it  to 
the  care  and  judgment  of  individuals.  Accordingly,  notwithstanding 
some  previous  fluctuation  in  the  practice,(:c)  it  is  now  settled  that,  except 
in  charity  cases,(.?/)  the  court  will  not  authorize  the  insertion  of  such  a 
power  in  the  deed  of  con  veyance. (x) 

It  was  commonly,  but  erroneously,  supposed,  that  by  a  clause  in  Sir 
Edward  Sugden's  Trustee  Act,((T)  (now  repealed,)  a  new  trustee  might 
in  all  cases  have  been  appointed  by  the  summary  process  of  ?i petition. 
However,  the  words  of  the  enactment  did  not  authorize  a  petition  for  the 
mere  purpose  of  appointment  of  new  trustees,  but  only  tchere  applica- 
tion was  made  under  the  act  for  a  conveyance  or  transfer  ivhich  could 
not  otherwise  he  ohtained,{l>)  and  the  recent  creation  of  the  trust  or  other 
circumstances  rendered  it  safe.(c^  The  court  had  authority  to  appoint 
new  trustees  by  way  of  secondary  or  collateral  only,  and  not  of  original 
jurisdiction. 

The  court  might  have  appointed  a  new  trustee,  although  the  settle- 

(u)  Uvedale  v.  Ettrick,  2  Ch.  Ca.  130. 

(v)  Doyley  v.  Attorney-General,  2  Eq.  Ca.  Ab.  194;  Hibbard  v.  Lambe,  Amb, 
309  ;  Fordyce  v.  Bridges,  2  Phill.  497 ;  and  see  Cole  v.  Wade,  16  Ves.  44,  47  ; 
Drayson  v.  Pocock,  4  Sim.  283  ;  Lord  v.  Bunn,  2  Y.  &  C.  Ch.  Ca.  98. 

(w)  Newman  v.  Warner,  1  Sim.  N.  S.  457. 

(x)  Joyce  V.  Joyce,  2  Moll.  27G;  White  v.  White,  5  Beav.  221. 

(/)  Attorney-General  v.  Hurst,  M.  R.,  Dec.  2,  1791,  Reg.  Lib.  A.  1791,  f.  487; 
see  the  decree,  stated  Seton's  Dec.  130  ;  In  the  matter  of  52  G.  3,  c.  101,  12  Sim. 
262  ;  Re  Lovett's  Exhibition,  Sidn.  Suss.  Coll.  Camb.,  cor.  V.  C.  Knight  Bruce, 
Dec.  20,  1849. 

(z)  Bayley  v.  Mansell,  4  Madd.  226;  Brown  v.  Brown,  3  Y.  &  C.  395;  Southwell 
V.  Ward,  Taml.  314;  Bowles  v.  Weeks,  14  Sim.  591;  Oglander  v.  Oglander,  2  De 
Gex  &  Sm.  381 :  Holder  v.  Durbin,  11  Beav.  594;  in  which  last  case  LoVd  Lang- 
dale,  M.  R.,  in  deference  to  the  views  of  the  other  judges,  declined  to  follow  his 
own  previous  decision  in  White  v.  White. 

(a)   11  G.  4,  &  1  W.  4,  c.  60,  s.  22. 

(6)  In  re  Fitzgerald,  LI.  &  G.  t.  Sugd.  20  ;  Ex  parte  Whitley,  id.  23 ;  In  re  An- 
derson, id.  27  ;  Re  Byrne,  1  Jones  &  Lat.  535 ;  In  re  Pennefather,  In  re  Hartford, 
Harte  v.  French,  2  Drur.  &  War.  292  ;  but  see  Ex  parte  Pluuket,  8  Ir.  Eq.  Rep.  523. 

(c)  la  re  NichoUs,  LI.  &  G.  t.  Sugd.  17  ;  Ex  parte  Whitley,  id.  23, 


570  LEAVIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

ment  contained  a  looicer  of  appointing  new  trustees,  if  under  the  circum- 
P^^^  ,-,  stances  the  power  could  not  be  exercised,((Z)  *but  if  the  power 
L  *^^\  ^as  exercisable  the  donees  of  the  power  should  have  nominated 
a  new  trustee,  and  then  a  petition  should  have  been  presented,  praying 
the  necessary  conveyance  or  transfer,  (e)  If  the  person  in  whom  the 
lejral  estate  was  vested  could  make  the  transfer  without  an  order,  there 
was  no  case  for  the  jurisdiction  of  the  court. 

By  the  larger  provisions  of  the  act  now  in  force  (13  &  14  Vict.  c.  60, 
s.  32,)  it  is  enacted  that  whenever  it  shall  be  expedient  to  appoint  a  new 
trustee  or  new  trustees,  and  it  shall  be  found  inexpedient,  difficidt,  or 
imprcticahle  so  to  do  without  the  assistance  of  the  court,  the  court  may 
appoint  a  new  trustee  or  trustees,  either  in  substitution  for  or  in  addition 
to  any  existing  trustee  or  trustees. 

The  Banhriiptcy  Act{^f)  has  also  authorized  the  appointment  of  a  new 
trustee  on  j^etition  in  the  case  of  the  trustee's  bankruptcy.  It  declares 
that  ''  if  any  bankrupt  shall,  as  trustee,  be  seised  of  or  entitled  to  any 
real  or  personal  estate,  it  shall  be  lawful  for  the  lord  chancellor^!;)  on 
the  petition  of  the  person  entitled  in  p)Ossession  to  the  receipt  of  the 
rent,  issues,  and  profits,  dividends,  interest  and  produce  thereof,(/i)  on 
due  notice  given  to  all  other  persons,  if  any,  interested  therein,  to  order 
the  assignees  and  all  persons,  whose  act  or  consent  thereto  is  necessary, 
to  convey,  assign,  or  transfer  the  said  estate  to  such  person  or  persons  as 
the  lord  chancellor  shall  think  fit  upon  the  same  trusts  as  the  said  estate 
was  subject  to  before  the  bankruptcy."  • 

Upon  this  enactment  the  following  points  have  been  determined  : — 

1.  The  act  requires  that  notice  should  be  given  to  all 2)ersons  inte- 
r-^^-,  F-|  rested.  In  one  case  where  a  conveyance  was  made  *by  A.  to  B. 
'-  J  upon  trust  by  sale  or  other  disposition  to  secure  a  mortgage  sum 
advanced  by  C,  and  B.  became  bankrupt,  the  court  refused  to  make  an 
order  on  the  petition  of  A.  without  notice  to  C.(^)  But  afterwards  in  a 
similar  case  notice  to  the  mortgagor  was  dispensed  with.(7,;)  Where  any 
doubt  exists  who  are  the  cestuis  que  trust  all  must  be  served,  for  it  was 
not  meant  that  the  court  should  decide  upon  the  right.  (A  If  the  bank- 
rupt himself  be  served  with  the  petition  he  will  be  allowed  his  costs. (??i) 

2.  The  act  directs  the  assignees  and  others  to  convey ;  but  where  the 
trust  is  clear,  the  legal  estate  does  not  pass  to  the  assignees,  and  there- 

(d)  In  re  Fauntleroy,  10  Sim.  252;  In  re  Foxall,  2  Phill.  281;  and  see  In  re 
Roche,  1  Conn.  &  Laws.  306. 

(e)  In  re  Laffan,  1  Conn.  &  Laws.  395. 

(/)   12  &  13  Vict.  c.  106,  s.  ]30,  re-enacting  6  G.  4,  c.  16,  s.  19. 

(,</)  The  petition,  though  it  may  be  heard  by  a  V.  C,  should  be  addressed  to  the 
Lord  Chancellor.  Ex  parte  Cartwright,  3  De  Gex  &  Sm.  648.  In  the  matter  of 
Heath,  9  Hare,  616,  the  objection  that  the  petition  should  be  heard  by  the  Court 
of  Ai3peal  to  whom  the  jurisdiction  in  bankruptcy  had  been  committed  by  the  14 
&  15  V.  c.  83,  was  overruled,  s.  7. 

(h)  These  words,  prescribing  the  'person  by  whom  the  petition  is  to  be  presented, 
limit  the  jurisdiction  somewhat  inconveniently.  See  Ex  parte  Cousen,  1  De  Gex, 
451. 

(i)  Ex  parte  Orgill,  2  D.  &  C.  413  ;  and  see  Ex  parte  Hardman,  3  Mont.  Deac. 
&  De  Gex,  559. 

(k)  Ex  parte  Marshall,  3  De  Gex  &  Sm.  6T0. 

(l)  Ex  parte  Congreve,  1  De  Gex,  267.  (m)  Ex  parte  Whitley,  1  Deac.  478. 


EIGHTS  OF  THE  CESTUI  QUE  TRUST.       57I 

fore  iu  such  a  case  tliey  need  not  be  parties  to  the  conveyance,  but  the 
words  of  the  act  are  regarded  as  sutylusageJn) 

3.  The  court  is  to  order  the  conveyance,  assignment,  or  transfer  to  be 
made  to  such  person  or  persons  as  the  court  shall  think  fit,  and  therefore 
it  has  been  held  that  if  A.  and  B.  be  trustees,  and  A.  die,  and  B. 
become  bankrupt,  the  court  can  order  the  conveyance,  assignment,  or 
transfer  to  two  new  trustees. (0) 

If  there  be  a  power  of  appointment  of  new  trustees,  and  the  power  be 
exercised,  the  court  will  direct  the  conveyance,  assignment,  or  transfer 
to  be  made  to  the  person  so  appointed, (p)  or  if  all  parties  interested  who 
are  sui  juris  concur  in  the  selection  of  a  person  as  new  trustee,  the  court 
will  order  accordingly  :(?/)  or  the  court,  on  an  affidavit  of  the  fitness  of 
the  person  proposed,  will  in  common  cases  make  the  appointment  at 
once  without  the  expense  of  a  reference. (r) 

4.  *The  act  directs  the  conveyance,  assignment,  or  transfer  to  r-^^-,  r,-, 
be  made  upon  the  same  trusts  as  the  property  was  subject  to  L  J 
before  the  bankruptcy;  but  if  the  trust  has  since  been  executed,  and  a 
petition  be  presented  by  the  person  solely  interested,  the  court  will 
order  the  conveyance,  assignment,  or  transfer  to  be  made  to  the  peti- 
tioner, (s) 

5.  The  costs  of  all  parties,  including  the  bankrupt  himself,(^)  will  be 
paid  out  of  the  trust  fund,(«)  or  by  the  petitioner  in  the  first  instance, 
who  will  recover  them  over  from  the  trust  fund.(y) 

There  exists  in  the  case  of  charitable  trusts,  the  same  right  to  have  a 
proper  number  of  trustees  appointed  in  the  case  of  an  ordinary  trust, 
and  a  mode  less  expensive  than  by  suit  asserting  the  right  has  been 
similarly  provided  by  statutory  enactment.  Thus  by  the  1  Wm.  4,  c. 
60,  s.  23,  and  2  Wm.  4,  c.  57,  s.  3,  it  was  in  substance  enacted  that 
when  the  person  in  whom  any  real  property  might  have  been  vested  in 
trust  for  any  clmrity  should  be  dead^  the  court  of  chancery  might  on 
petition  direct  advertisements  to  issue  for  the  representative  of  the  person 
or  last  survivor  of  the  persons  in  whom  such  real  property  might  have 
been  vested  to  appear  or  give  notice  of  his  title,  and  prove  his  pedigree 
or  other  title  as  trustee,  and  if  no  person  appeared  to  give  such  notice,  or 
the  person  giving  it  should  fail  to  prove  his  title,  the  court  might  appoint 
any  new  trustees  for  such  charity,  in  case  no  trustees  for  such  charity 
duly  appointed  should  then  be  existing,  and  such  real  property  might  be 

{n\  Ex  parte  Painter,  2  D.  &  Ch.  584  ;  see  Ex  parte  Walton,  2  Mont.  &  Ayr.  242. 

(o)  Ex  parte  Wilkinson,  2  Deac.  151;  S.  C.  3  Mont.  &  Ayr.  145;  Ex  parte 
Saunders,  2  Gr.  &  J.  132  ;  Ex  parte  Inkersole,  ib.  230. 

{p)  Ex  parte ,  In  re  Remington,  3  D.  &  C.  24 ;  and  see  Williams  v.  Bird, 

1  V.  &  B.  3. 

(9)  See  Ex  parte  Whish,  2  Mont.  &  Ayr.  214;  Ex  parte  Stubbs,  2  Mont.  Deac. 
k  De  G.  570. 

(r)  Ex  parte  Beveridge,  4  D.  &  C.  455 ;  Ex  parte  Inkersole,  2  G.  &  J.  230 ;  Ex 
parte  Palmer,  Deac.  1*77;  Ex  parte  Walton,  2  M.  &  A.  242  ;  Ex  parte  Page,  1  D.  & 
C.  321 ;  Ex  parte  Buffery,  2  D.  &  C.  576;  Ex  parte  Cartwright,  3  De  Gex  &  Sm. 
648. 

(s)  Ex  parte  Hancox,  Mont.  247. 

\t)  Ex  parte  Whitley,  1  Deac.  478  ;  and  see  Cartwright,  3  De  Gex  &  Sm.  G48. 

(m)  Ex  parte  Bufifery,  2  D.  &  C.  576. 

{v)  Ex  parte  Saunders,  2  G.  &  J.  132 ;  Ex  parte  Painter,  2  D.  &  C.  584. 


572       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

conveyed  to  such  new  trustees  wlien  so  appointed,  or  to  the  existing 
trustees  previously  appointed,  as  the  case  might  be,  by  any  person  whom 
the  said  court  might  direct  without  the  necessity  of  any  decree. 

Again  by  5  &  6  Wm.  4,  c.  76,  s.  71,  the  act  depriving  the  municipal 
corporations  of  the  administration  of  charities,  it  was  enacted  that  in 
every  borough  in  which  the  body  corporate  or  *any  one  or  more 
L  J  of  the  members  of  such  body  corporate  in  his  or  their  corporate 
capacity  then  stood  solely  or  together  with  any  person  or  persons  elected 
solely  by  such  body  corporate,  or  solely  by  auy  particular  number,  class, 
or  description  of  members  of  such  body  corporate,  seised  or  possessed  for 
any  estate  or  interest  ivhatsoever  of  any  hereditaments  or  personal  estate 
whatsoever,  in  whole  or  in  part,  in  trust  or  for  the  benefit  of  any  charita- 
ble uses  or  trusts  whatsoever,  all  the  estate,  right,  interest,  and  title,  and 
all  the  powers  of  such  body  corporate  or  of  such  member  thereof,  should 
from  and  after  the  1st  day  of  August,  1836,  utterly  cease.  Provided 
also,  that  if  parliament  should  not  otherwise  direct,  on  or  before  the 
said  1st  day  of  August,  1836,  {lohicli  was  not  done,)  the  lord  high  chan- 
cellor or  lords  commissioners  of  the  great  seal  should  make  such  orders 
as  he  or  they  should  sec  fit  for  the  administration,  subject  to  such  chari- 
table uses  or  trusts  as  aforesaid,  of  such  trust  estates. 

Under  the  authority  «  to  make  orders,"  the  court  of  chancery  has 
from  time  to  time,  for  the  due  management  of  the  charity  property, 
appointed  trustees  in  the  place  of  the  corporation.  The  jurisdiction  of  the 
court,  however,  has  been  held  not  to  apply  to  a  case  only  where  no  estate 
was  vested  in  the  old  corporation,  the  charity  property  being  vested  in 
trustees  and  the  corporation  being  merely  visitors  with  powers  of  nomi- 
nation.(w)  But  where  there  was  a  charity  corporation  substantially, 
though  not  identically,  the  same  in  its  component  parts  as  the  municipal 
corporation,  the  case  was  held  to  be  within  the  spirit  if  not  the  letter  of 
the  section  above  referred  to.(.t) 

The  appointment  of  trustees  by  the  court  under  the  act,  though  it 
made  them  the  custodiers  of  the  property,  could  not  of  course  transfer  to 
them  the  legal  estate,  which,  notwithstanding  the  strong  negative  words 
used  in  the  statute,  it  was  decided,  remained  in  the  corporation. (?/)  ]Jut 
now  by  16  &  17  Vict.  c.  137,  s.  65,  the  legal  estate  is  vested 
L  J  without  *any  actual  conveyance  in  the  trustees  appointed  by  the 
lord  chancellor,  and  upon  the  death,  resignation,  or  removal  of  any  of 
the  trustees,  and  the  appointment  of  any  new  trustee  or  trustees,  the 
legal  estate  is  transferred  to  the  trustees  for  the  time  being  without  any 
conveyance. 

Petitions  for  filling  up  vacancies  in  the  number  of  trustees  of  chari- 
ties, whether  in  substitution  for  a  corporation  or  otherwise,  ought  under 
the  old  practice  to  have  been  presented  under  Sir  S.  llomilly's  Act  (52 
Geo.   3,  c.  101,)  as  well  as  the  municipal   corporation  act,   and  the 

(w)  Attorney-General  v.  Newbury  Corporation,  C.  P.  Coop.  Rep.  837-38,  72  ; 
Christ's  Hospital  v.  Grainger,  16  Sim.  102. 

(z)  Attorney-General  v.  Mayor,  &c.,  of  Exeter,  2  Do  Gex,  Mac.  &  Gor.  507. 
(y)  Doe  V.  Norton,  11  Mees.  &  W.  913. 


RIGHTS    OF    THE    CESTUI    QUE    TRUST.  573 

attorney's-general  fiat  must  have  been  obtained  to  sucb  a  petition/,:) 
though  this  rule  does  not  appear  to  have  been  uniformly  adhered  to.(«) 

Now  under  the  charitable  trusts  act  (16  &  17  Vict.  c.  137,)  s.  28,  new- 
trustees  of  any  charity  the  gross  annual  income  whereof  exceeds  30^.(6) 
may  be  appointed  by  one  of  the  equity  judges  in  chambers,  and  the  court 
has  power  at  the  same  time  to  make  an  order  under  the  trustee  act,  wiV/t- 
oxit  petition,  vesting  the  estates  in  the  new  trustees. (c)  But  the  sanction 
of  the  charity  commissioners  under  the  17th  section,  must  be  obtained. 

II.  The  cestui  que  trust  is  entitled  to  file  a  bill  against  his  trustee,  and 
compel  him  to  the  execution  of  any  particular  act  of  duty. 

Thus,  if  the  legal  estate  in  the  hands  of  the  trustee  be  assailed  by  a 
stranger,  the  cestui  que  trust  may  not  institute  proceedings  in  the  name 
of  the  trustee  without  his  authority,  (rf)  but  may  oblige  the  trustee  on 
giving  him  a  proper  indemnity  to  assert  the  legal  right  ;(e)  and  so  if  the 
trustee  of  a  covenant,  even  a  voluntary  one,  will  not  sue  upon  it,  the 
cestui  que  trust,  *may  compel  the  trustee  on  a  proper  indemnity  I-5^H.-,Q-| 
to  lend  his  name  to  the  cestui  que  trust,  to  enable  him  to  sue.(/)  L  J 
Otherwise,  should  the  trust  property  be  lost,  and  the  trustee  himself 
become  insolvent,  the  cestui' s  que  trust  equitable  interest  would  be  abso- 
lutely destroyed. 

But  if  A.  allege  in  himself  a  title  which  he  does  not  possess,  and  sells 
to  B.  for  valuable  consideration  without  notice  of  a  prior  settlement  under 
which  C.  is  the  real  cestui  que  trust,  the  court  will  not,  in  a  suit  by  C. 
against  A.  and  B.,  compel  the  trustee  of  the  settlement  to  convey  the 
legal  estate  to  C,  or  to  lend  his  name  to  C.  for  the  purpose  of  trying  an 
ejectment  against  B.  the  bonajide  purchaser  for  value  without  notice. (,9') 

Sir  Joseph  Jekyll  laid  down  the  rule,  that  ''  the  forbearance  of  the 
trustees  in  not  doing  what  it  was  their  office  to  have  done  should  in  no 
sort  prejudice  the  cestuis  que  tr^ist  ;"(Ji\  and  hence  it  has  been  inferred 
that  a  right  gained  by  a  stranger  through  the  neglect  of  the  trustee  shall 
be  no  bar  in  equity  to  the  claim  of  the  cestui  que  trust ;  but  the  principle 
was  evidently  intended  to  apply  as  between  the  privies  to  the  trust  only, 
and  not  as  between  the^:)?'iftes  to  the  trust  and  a  stranger. 

"  The  rule,  that  the  statute  of  limitations  does  not  bar  a  trust  estate," 
said  Lord  Hardwicke,  '<  holds  only  as  between  cestui  que  trust  and  trus- 
tee, not  between  cestui  que  trust  and  trustee  on  the  one  side,  and  stran- 
gers on  the  other,  for  that  would  make  the  statute  of  no  force  at  all, 

(z)  Re  Warwick  Charities,  1  Phill.  559 ;  Re  Rolle's  Charity,  3  De  Gex,  Mac.  & 
Gor.  153  ;  Re  London,  Brighton,  &c.  Railway  Co.,  18  Beav.  608. 

(a)  Nightingale's  Charity,  3  Hare,  336;  Belke's  Charity,  13  Jur.  317. 

(b)  By  s.  32,  where  the  income  is  below  30^.,  the  district  courts  of  bankruptcy 
and  county  courts  have  jurisdiction. 

(c)  Re  Davenport's  Charity,  4  De  Gex,  Mac.  &  Gor.  839;  In  Lincoln  Primitive 
Methodist  Chapel,  1  Jur.  N.  S.  1011,  V.  C.  Stuart  does  not  appear  to  have  been 
aware  of  the  decision  in  Davenport's  Charity. 

(d)  See  Crossley  v.  Crowther,  9  Hare,  386. 

(e)  Foley  v.  Burnell,  1  B.  C.  C.  277,  per  Lord  Thurlow ;  Cary,  14;  and  see 
Kirby  v.  Mash,  3  Y.  &  C.  295  ;  Malone  v.  Geraghty,  2  Conn,  and  Laws.  251. 

(/)  See  Fletcher  v.  Fletcher,  4  Hare,  78. 

Iff)  Turner  v.  Buck,  22  Vin.  Ab.  21. 

{h)  Lechmere  v.  Earl  of  Carlisle,  3  P.  W.  215. 

April,  1858.— 37 


574  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

because  there  is  liarclly  any  estate  of  consequence  without  such  trust,  and 
so  the  act  would  never  take  place.  Therefore,  where  a  cesHii  que  trust 
and  his  trustee  are  both  out  of  possession  for  the  time  limited,  the  party 
in  possession  has  a  good  bar  against  them  both.''(?')  "  A  cestui  que  imst," 
said  Lord  Kedesdale,  "  is  always  barred  by  length  of  time  operating 
ao-ainst  the  trustee.  If  the  trustee  does  not  enter,  and  the  cestui  que 
trust  does  not  compel  him  to  enter,  as  to  the  person  claiming  paramount,  the 
cestui  que  trust  is  barred."(A-)  And  Lord  Manners  observed, 
L  *  "^^J  *c(  The  opinion  of  Sir  J.  Jekyll,  if  intended  to  apply  to  third 
persons,  which  I  do  not  conceive  it  was,  has  often  been  denied,  and  is 
contrary  to  many  decisions.  If  the  trustees  who  are  so  appointed  neglect 
their  duty,  and  suffer  an  adverse  possession  of  twenty  years  to  be  held, 
I  apprehend  the  Statute  of  Limitations  is  a  bar  to  the  cestui  que 
trust."{l) 

In  Allen  v.  Sayer,(7?i)  as  corrected  from  the  Registrar's  Book,  a  testa- 
tor gave  his  real  estate  after  his  mother's  and  2i-i/e's  decease  to  Allen,  an 
infant,  his  heirs  and  assigns,  and  by  the  same  will  gave  his  real  estate 
to  A.  B.  and  C.  D.  upon  trust,  if  occasion  should  be,  to  sell  the  same  in 
aid  of  the  personal  estate  for  payment  of  debts,  and  appointed  his  wife 
and  mother  the  executrixes  of  his  will.  The  wife  renounced,  and  the 
mother  only  proved.  Shortly  after  the  testator's  decease,  which  happened 
about  1678,  the  trustees  of  the  will  not  offering  to  interfere,  and  Allen 
being  of  the  age  of  ten  years,  and  the  testator's  mother  of  great  age,  and 
therefore  averse  to  any  dispute,  one  Sayer,  who  was  connected  with  the 
family  by  marriage,  and  pretended  a  claim  to  the  lands,  prevailed  with 
(Curtis,  the  tenant  in  possession  under  a  lease  for  years,  to  attorn  and  pay 
rent  to  himself,  and  gave  him  a  bond  of  indemnity.  Sayer  then  levied 
a  fine  of  the  lands  icith  proclainatiojis,  and  five  years  passed  and  no 
entry  was  made.  In  1688,  the  testator's  mother  died,  and  the  right  of 
Allen,  the  infant,  to  the  possession,  then  accrued.  About  1689,  the  in- 
fant attained  his  age  of  twenty-one  years,  and  in  1690  brought  an  eject- 
ment at  law,  but  failed.  Upon  this  he  instituted  a  suit  in  equity,  and 
Lord  Somers  decreed,  that  "  the  fine  and  non-claim  should  not  incur 
against  the  plaintiff,  who  was  then  an  infant ;"  and  his  lordship  is  re- 
ported by  Vernon  to  have  said,  that  «  although  the  fine  and  non-claim 
was  a  good  bar  at  law,  the  legal  estate  being  in  the  trustees,  who  were 
of  full  age  and  ought  to  have  entered,  yet  the  plaintiff  ought  not  to  suffer 
for  their  laches,  being  an  infant,  and  who,  so  soon  as  of  age,  made  entry, 
r*"^9-i1  *^^^  brought  his  ejectment,  and  likewise  his  bill  in  that  court, 
L  "'  -I  before  five  years  had  incurred  after  he  had  attained  his  age." 
But  this  must  not  be  taken  as  a  decision  by  Lord  Somers,  that  the  right 
of  an  infant  cestui  que  trust  to  a  legal  estate  cannot  be  barred  by  the 
laches  of  his  trustee  ;  for  it  must  be  remarked,  1.  That  the  legal  fee  was 

[i)  Lewellin  v.  Mackwortb,  2  Eq.  Ca.  Ab.  579. 

[k)  Hovenden  v.  Lord  Anneslej,  2  Sch.  &  Lef.  629. 

[l]  Pentland  v.  Stokes,  2  B.  &  B.  75.  In  this  case  the  cestui  que  trust  was  part 
of  the  time  an  infant,  and  as  Lord  Manners  expressed  a  general  opinion,  it  would 
seem  he  concurred  in  the  doctrine,  that  an  infant  is  bound  as  well  as  an  adult. 

(w)  2  Vern.  368.     See  the  case  stated  from  Reg.  Lib.,  Appendix.  No.  X. 


I 


RIGHTS    OF    THE    CESTUI    QUE    TRUST.  575 

in  the  trustees,  both  by  foi'ce  of  the  word  "  estate/'  and  also  from  the 
trust  to  sell,  and  therefore  the  infant  could  not  have  maintained  an  action 
at  law  independently  of  the  fine  and  non-claim.  2.  It  is  not  clear  that 
the  conusor,  when  he  levied  the  fine,  was  seised  of  the  freehold;  for  he 
had  merely  the  attornment  of  the  tenant,  and  this  of  itself  would  not 
work  a  disseisin. (n)  3.  The  interest  of  the  infant  was  subject  to  the 
prior  life  estate  in  the  same  lands  of  the  testator's  mother,  and  it  is  not 
said,  howeYer  jjrobable,  that  this  estate  was  taken  under  the  will:  if  it 
was  an  estate  prior  to  the  testator's  interest,  then,  as  the  mother  did  not 
die  till  1688,  the  right  of  entry  of  the  infant,  or  rather  of  the  devisees 
in  trust  for  him,  was  not  barred  until  five  years  after  the  reversion  had 
fallen  into  possession,  within  which  period  of  time  the  suit  in  equity  was 
instituted.  4.  The  conusor  of  the  fine  had  full  notice  of  the  trust,  and 
contrived  to  get  into  possession  of  the  land  through  the  fraud  and  col- 
lusion of  the  tenant,  to  whom  he  had  given  a  bond  of  indemnity,  and  it 
cannot  be  disputed,  that,  where  the  conusor's  estate  was  originally  infected 
with  fraud,  the  fine  and  non-claim  can  have  no  efi"ect  in  removing  the 
blot.(o) 

In  The  Earl  v.  The  Countess  of  Huntingdon,(p)  Lord  Macclesfield 
was  of  opinion,  that  a  fine  and  five  years'  non-claim  would,  in  favour  of 
a  purchaser,  bar  a  trust  term,  though  the  cestui  que  trust  was  an  infant. 

In  Wych  v.  The  East  India  Company,(2')  A.  had  agreed  with  the 
company  for  an  allowance  of  two  per  cent.,  and  afterwards  died  intestate, 
leaving  an  infant  son.  B.  took  out  administration  durante  minoritate, 
but  instituted  no  suit  upon  the  contract.  *The  son,  within  sis  p^_^^-, 
years  after  he  had  attained  his  age,  but  not  within  six  years  after  L  '  ^J 
the  cause  of  action  accrued,  brought  his  bill  against  the  company  for  an 
account,  and  they  pleaded  the  Statute  of  Limitations.  Lord  Talbot  said, 
"The  administrator,  during  the  infancy  of  the  plaintiff,  had  a  right  to 
sue ;  and  though  the  cestui  que  trust  was  an  infant,  yet  he  must  be  bound 
by  the  trustees  not  suing  in  time;  for  I  cannot  take  away  the  benefit 
of  the  Statute  of  Limitations  from  the  company,  xoho  are,  in  no  defaidt, 
and  are  entitled  to  take  advantage  thereof  as  well  as  private  persons, 
since  their  witnesses  may  die,  or  their  vouchers  be  lost.  And  as  to  the 
trust,  that  is  only  between  the  administrator  and  the  infant,  and  does  not 
affect  the  company." 

It  must  be  observed,  however,  that  the  principles  involved  in  the 
foregoing  authorities  seem  to  be  impliedly  contradicted  by  the  recent 
Statute  of  Limitations,  3  &  4  Wm.  4,  c.  27,  s.  24,  which,  while  creating 
an  absolute  bar  to  equitable  as  well  as  legal  estates,  appears  to  assume 
that  the  trustee  and  cestui  que  trust  have  distinct  rights  of  suing;  and 
further,  that  although  the  25th  section  of  the  act,  providing  that  the 
right  of  the  cestui  que  trust  shall  be  deemed  to  have  accrued  at  and  not 
before  the  time  of  conveyance  by  the  trustee  to  a  purchaser  for  value, 

{n)  See  Co.  Lit.  322  b,  325  p.. 

(0)  See  Kennedy  v.  Daly,  1  Sell.  &  Lef.  3V9,  381  ;  Salsbury  y.  Bagott,  2  Sw. 
612  ;  Bell  v.  Bell,  LI.  &  G'.  t.  Plunket,  44 ;  Reece  v.  Trye,  1  De  Gex  &  Sm.  273  ; 
Langley  t.  Fisher,  9  Beav.  90. 

{p)  Cited  Wvch  v.  East  India  Company,  3  P.  W.  310.  note  (G). 

\q)  3  P.  W.  309. 


576  LEWIN    ON    THE    LAAV    OF    TRUSTS,    ETC. 

mi"-ht  seem  at  first  sight  to  give  a  statutory  recognition  to  those  princi- 
ples alhided  to,  yet,  according  to  the  tenor  of  the  late  decisions,  that 
section  is  to  be  viewed  merely  as  a  special  exception  in  favour  of  the 
cestui  que  trust,  and  not  as  abridging  the  rights  to  sue  of  a  cestui  que 
trust  in  remainder  or  under  disability. (r) 

If  a  tenant  for  life  of  leaseholds,  who  is  regarded  as  a  trustee  for  the 
remainderman,  be  bound  to  renew,  and  by  his  threats  or  acts  manifest 
an  intention  not  to  renew,  the  remainderman  may  file  a  bill,  and  have  a 
receiver  appointed  for  the  purpose  of  providing  the  renewal  fine  out  of 
the  rents  and  profits  of  the  estate  ;  and  if  the  period  of  renewal  has  already 
expired,  a  receiver  may  be  appointed  on  proof  of  the  tenant's  for  life 
default,  (s) 

*In  one  case,  where  a  suspicion  was  entertained  that  the  trustee 
L  J  would  not  fairly  execute  his  trust,  the  court  required  of  him,  if 
he  continued  in  the  office,  to  enter  into  securities  for  his  good  faith. (<) 

And  generally  a  cestui  qiie  trust,  though  entitled  to  a  mere  contingent 
benefit,  may,  upon  reasonable  cause  shown,  apply  to  the  court  to  have 
his  interest  properly  secured. («) 

III.  As  the  cestui  que  trust  may  compel  the  trustee  to  the  observance 
of  his  duty,  so,  on  the  other  hand,  if  the  cestui  que  trust  have  reason  to 
suppose,  and  can  satisfy  the  court,  that  the  trustee  is  about  to  proceed  to 
an  act  not  authorized  by  the  true  scope  of  the  trust,  he  may  obtain  an 
injunction  from  the  court  to  restrain  the  trustee  from  such  a  wanton 
exercise  of  his  legal  power,  (v) 

It  is  clear  the  cestui  que  trust  would  be  entitled  to  an  injunction  where 
the  act  in  contemplation  would,  if  done,  be  irremediable  ;(w)  but  in  Pechel 
v.  Fowler,(a:)  a  case  in  the  exchequer,  it  is  said  to  have  been  held,  that 
a  cestui  que  trust  could  not  restrain  an  improvident  sale  by  the  trustee, 
because  the  cestui  que  trust  might  proceed  against  the  trustee  for  the 
consequential  damage  to  the  estate,  and  so  the  injury  was  not  irreparable  ; 
but  Sir  J.  Leach,  under  similar  circumstances,  granted  an  injunction  ;(?/) 
and  other  authorities  are  not  wanting  in  support  of  so  just  and  reasonable 
a  right,  fz^ 

(r)  Thompson  v.  Simpson,  1  Dru.  &  War.  489 ;  Commissioners  of  Charitable 
Donations  V.  Wybrants,  1  Jon.  &  Lat.  182;  Attorney-General  v.  Magdalen  College, 
(reversed  in  D.  P.,  on  the  13th  of  June,  1857,)  18  Beav.  223,  see  239,  250.  N.  B. 
In  none  of  these  cases  had  there  been  an  actual  conveyance  by  a  trustee. 

(s)  See  Bennett  v.  Colley,  5  Sim.  192  ;  S.  C.  2  M.  &  K.  233. 

\t)  Keeling  v.  Child,  Rep.  t.  Finch,  360. 

(m)  Cole  V.  Moore,  Mo.  806.  {v)  Balls  v.  Strutt,  1  Hare,  146. 

(w)  See  Corporation  of  Ludlow  v.  Greenhouse,  1  Bl.  N.  R.  57;  In  re  Chertsey 
Marliet,  6  Price,  279,  281;  Attorney-General  v.  Foundling  Hospital,  2Yes.  jun.  42. 

{x)   2  Anst.  549.  [y)  Anon,  case,  6  Mad.  10. 

(2)  See  Webb  v.  Earl  of  Shaftesbury,  7  Ves.  487,  488  ;  Reeve  t.  Parkins,  2  J. 
&  W.  390  ;  Milligan  v.  Mitchell,  1  M.  &  K.  446  ;  Attorney-General  v.  Mayor  of 
Liverpool,  1  M.  &  C.  210  ;  Vann  v.  Barnett,  2  B.  C.  C.  157. 


REMEDIES    OF    THE    CESTUI    QUE    TRUST.  577 


*C  H  A  P  T  E  R  X  X  Y  I.  [*724] 

THE  REMEDIES  OF  THE  CESTUI  QUE  TRUST  IN  THE  EVENT  OF  A 
BREACH  OF  TRUST. 

Upon  the  subject  of  tlie  cestui's  que  trust  remedies  for  a  breach  of 
trust,  we  shall  consider,  1.  The  right  of  the  cestui  que  trust  to  follow  the 
estate  into  the  hands  of  a  stranger,  to  whom  it  has  been  tortiously  con- 
veyed ;  2.  The  right  of  attaching  the  property  into  which  the  trust  estate 
has  been  wrongfully  converted  ;  3.  The  remedy  against  the  trustee  per- 
sonally, by  way  of  compensation  for  the  mischievous  consequences  of  the 
act ;  and,  4.  The  mode  and  extent  of  redress  in  breaches  of  trust  com- 
mitted by  trustees  of  charities. 


SECTION  I. 

OF   FOLLOWING   THE    ESTATE   INTO   THE   HANDS    OF   A   STRANGER. 

The  questions  that  suggest  themselves  upon  this  subject  are,  First, 
Into  whose  hands  the  estate  may  be  followed ;  Secondly,  Within  what 
limits  of  time  ;  Thirdly,  What  account  the  court  will  direct  of  the  mesne 
rents  and  profits. 

I.  If  the  alienee  be  a  volunteer,  then  the  estate  may  be  followed  into 
his  hands,  whether  he  had  notice  of  the  trust,(a)  or  not;/i)  for,  though 
he  had  no  actual  notice,  yet  the  court  *will  imply  it  against  him  ^^-^^-. 
where  he  paid  no  consideration.  But,  if  the  alienee  be  a  p?^?'-  L  ""  J 
chase?'  of  the  estate,  at  its  full  value,  then,  if  he  take  with  notice  of  the 
trust,  he  is  (subject  to  the  protection  afi"orded  by  the  Statutes  of  Limita- 
tions) bound  to  the  same  extent  and  in  the  same  manner  as  the  person 
of  whom  he  purchased,(c)  even  though  the  conveyance  was  made  to  him 
by  fine  with  non-claim  ^(cl)  for,  knowing  another's  right  to  the  property, 
he  throws  away  his  money  voluntarily,  and  of  his  own  free  will  ;(e)  and 

(a)  Mansell  v.  Mansell,  2  P.  W.  6T8;  Saunders  v.  Dehew,  2  Vern.  271;  S.  C. 
2  Freem.  123  ;  Langton  v.  Astrey,  2  Ch.  Re.  30 ;  S.  C.  Nels.  126. 

(b)  Mansell  v.  Mansell,  2  P.  W.  681,  per  Cur.:  Bell  v.  Bell,  1  Rep.  t.  Plunkett, 
58 ;  Pye  v.  George,  2  Salk.  680,  per  Lord  Harcourt ;  and  see  1  Re.  122  b;  Burgess 
V.  Wheate,  1  ed.  219  ;  Spurgeon  v.  Collier,  1  ed.  55;  Cole  v.  Moore,  Mo.  806. 

(c)  Dunbar  v.  Tredennick,  2  B.  &  B.  319,  per  Lord  Manners  ;  Pawlett  v.  Attor- 
ney-General, Hard.  469,  per  Lord  Hale ;  Burgess  v.  Wheate,  1  Ed.  195,  per  Sir 
T.  Clarke  ;  Bovey  v.  Smith,  1  Vern.  149  ;  Phayre  v.  Peree,  3  Dow.  129  ;  Adair  v. 
Shaw,  1  Sch.  &  Lef.  262,  per  Lord  Redesdale ;  Wigg  v.  Wigg,  1  Atk.  382  ;  Mead 
V.  Lord  Orrery,  3  Atk.  238,  per  Lord  Hardwicke  ;  Mackreth  v.  Symons,  15  Ves. 
350,  per  Lord  Eldon  ;  Mansell  v.  Mansell,  2  P.  W.  681,  per  Cur.;  Willoughby  v. 
Willoughby,  1  T.  R.  T71,  per  Lord  Hardwicke;  Verney  v.  Carding,  cited  Joy  v. 
Campbell,  1  Sch.  &  Lef.  345;  Flemming  v.  Page,  Rep.  t.  Finch,  320;  Powell  v. 
Price,  2  P.  W.  539,  admitted;  Backhouse  v.  Middleton,  1  Ch.  Ca.  173;  S.  C.  id. 
208  ;  Walley  v.  Whalley,  1  Vern.  484  ;  Pearce  v.  Newlyn,  3  Mad.  186. 

(d)  Kennedy  v.  Daly,  1  Sch.  &  Lef.  355  ;  and  see  Bell  v.  Bell,  1  Rep.  t.  Plunket,  44. 

(e)  Mead  v.  Lord  Orrery,  3  Atk.  238,  per  Lord  Hardwicke. 


578  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

tlie  rule  applies  not  only  to  the  case  of  a  trust,  properly  so  called,  but  to 
purchasers  with  notice  of  any  equitable  incumbrance,  as  of  a  covenant  or 
agreement  affecting  the  estate,(/)  or  a  lien  for  purchase-money. (^r)  But, 
if  a  hona  fide  purchaser  have  not  notice,  he  then  merits  the  full  protec- 
tion of  the  court,  and  his  title,  even  in  equity,  cannot  be  impeached. (A) 
*If  the  purchaser  have  no  notice  of  the  trust  at  the  time  of  the 
[*726]  p^^gjjase,  but  afterwards  discover  the  trust  and  obtain  a  convey- 
ance from  the  trustee,it  seems  he  cannot  protect  himself  by  taking  shelter 
under  the  legal  estate  ;  for  notice  of  the  trust  converts  him  into  a  trustee, 
and  he  must  not,  to  get  a  plank  to  save  himself,  be  guilty  of  a  breach  of 
trust. (A  A  purchaser  without  notice  from  a  purchaser  with  notice  is  not 
liable,  for  his  own  hona  fides  is  a  good  defence  in  itself,  and  the  mala 
fides  of  the  vendor  ought  not  to  invalidate  it.(/j)  But  the  rule  does  not 
apply  to  the  case  of  a  charitable  use,  for  it  has  been  ruled  that  a  pur- 
chaser without  notice  from  a  purchaser  with  notice  shall  be  bound  by  the 
claim  of  the  charity.  (/)  In  other  respects  the  principles  of  equity  as  to 
the  doctrine  of  notice  are  applicable  to  charities  in  the  same  manner  as 
between  private  persons. (m) 

A  purchaser  with  notice  from  a  purchaser  without  notice  is  exempt 
from  the  trust,  not  from  the  merits  of  the  second  purchaser,  but  of  the 
first ;  for  if  an  innocent  purchaser  were  prevented  from  disposing  of  the 
beneficial  interest,  the  necessary  result  would  be  a  stagnation  of  pro- 
perty.(n)  But,  if  the  trustee  sell  the  lands  to  a  Z/o?ia/f?e  purchaser  without 
notice,  and  afterwards  /imse?/"  become  the  owner  of  the  lands,  though 
for  a  good  and  valuable  consideration,  the  trust  as  to  him  revives  again, 
and  he  shall  restore  the  land  to  the  trust  :(o)  and  in  this  respect  equity 

(/)  Daniels  v.  Davison,  16  Yes.  249;  Earl  Brook  v.  Bulkeley,  2  Ves.  498; 
Taylor  v.  Stibbert,  2  Ves.  jun.  437;  Winged  v.  Lefebury,  2  Eq.  Ca.  Ab.  32; 
Ferrars  v.  Cherry,  2  Vern.  384;  Jackson's  case,  Lane,  60;  Crofton  v.  Ormsby,  2 
Sch.  &  Lef.  583  ;  Kennedy  v.  Daly,  1  Sch.  &  Lef.  355. 

{g)  Mackreth  v.  Symmons,  15  Ves.  329  ;  Walker  v.  Preswick,  2  Ves.  622,  per 
Lord  Hardwicke  ;  Kator  v.  Pembroke,  1  B.  C.  C.  302,  per  Lord  Loughborough; 
Gibbons  V.  Baddall,  2  Eq.  Ca.  Ab.  682,  note  (6);  Elliot  v.  Edwards,  3  B.  &  P.  181 ; 
and  see  Grant  v.  Mills,  2  V.  &  B.  306;  Dunbar  v.  Tredennick,  2  B.  &  B.  320. 

(A)  Burgess  v.  Wheate,  1  Ed.  195,  per  Sir  T.  Clarke ;  Id.  246,  per  Lord  Henley; 
Millard's  case,  2  Freem.  43  ;  Mansell  v.  Mansell,  2  P.  W.  681,  per  Cur. ;  Willoughby 
V.  Willoughby,  1  T.  11.  771,  per  Lord  Hardwicke ;  Dunbar  v.  Tredennick,  2  B.  &  B. 
318,  per  Lord  Manners  ;  Trevor  v.  Trevor,  1  P.  W.  633  ;  Harding  v.  Hardrett,  Rep. 
t.  Finch,  9 ;  Cole  v.  Moore,  Mo.  806,  per  Cur. ;  Jones  v.  Powles,  3  M.  &  K.  581 ; 
Payne  v.  Compton,  2  Y.  &  C.  457. 

(i)  Saunders  v.  Dehew,  2  Vern.  271 ;  S.  C.  2  Freem.  123;  Langton  v.  Astrey,  2 
Ch.  Re.  30  _;  S.  C.  Nels.  126. 

{k)  Mertins  v.  Joliffe,  Amb.  313,  per  Lord  Hardwicke;  Ferrars  v.  Cherry,  2 
Vern.  384;  see  Pitts  v.  Edelph,  Tothill,  104;  Salsbury  v.  Bagott,  2  Sw.  608. 

(I)  East  Greenstead's  case,  Duke,  65,  Sutton  Colefield  case,  id.  68  ;  and  see  id. 
94,  173;  see  Commissioners  of  Charitable  Donations  v.  Wybrants,  2  Jones  &  Lat. 
194.  (m)  See  3  Vend,  and  Pur.  944,  13th  ed. 

{n)  Harrison  v.  Forth,  Pr.  Ch.  51 ;  Bradwell  v.  Catchpole,  stated  Walker  v. 
Symonds,  3  Sw.  78,  note  (a);  Mertins  v.  Jolliife,  Amb.  313,  per  Lord  Hardwicke; 
Brandlyn  V.  Ord,  1  Atk.  571,  per  eundem ;  Sweet  v.  Southcote,  2  B.  C.  C.  66; 
M'Queen  v.  Farquhar,  11  Yes.  478,  per  Lord  Eldon  ;  Lowther  v.  Carlton,  2  Atk. 
242 ;  S.  C.  3  Barn.  358  ;  S.  C.  For.  187  ;  Andrew  v.  Wrigley,  4  B.  C.  C.  136,  per 
Cur. ;  Salsbury  v.  Bagott,  2  Sw.  608,  per  Cur. 

(o)  Bovy  V.  Smith,  2  Ch.  Ca.  124;  S.  C.  1  Vern.  60,  84,  144;  Kennedy  v.  Daly, 
1  Sch.  &  Lef.  379,  per  Lord  Redesdale. 


REMEDIES    OF    THE    CESTUI    QUE    TRUST.  579 

follows  the  law  ;  for,  if  a  trespasser  of  goods  *sell  tliem  iu  market  i-x:-.,--! 
overt,  the  owner's  title  is  barred  }  but  if  they  come  to  the  tres-  L  "  -I 
passer  again,  the  owner  may  seize  them.(jj) 

Upon  the  question,  how  far  a  purchaser  will  be  bound  by  notice  of  a 
doubtful  equity,  Lord  Northington  said,  in  Cordwell  v.  Mackrill,((/) 
<■<■  A  man  must  take  notice  of  a  deed  on  which  an  equity,  supjiorted  by 
precedents  the  justice  of  which  every  one  acknowledges,  arises,  but  not 
the  mere  construction  of  words,  which  are  uncertain  in  themselves,  and 
the  meaning  of  ichich  often  dejiends  on  their  locality."  And  Sir  W. 
Grant  observed,  <'  There  may  be  such  a  doidjtful  equity  that  a  ^purchaser 
is  not  to  be  taken  to  know  what  will  be  the  decision,  and  that  is  all  Lord 
Camden(r')  means ;  but  in  this  case  the  equity  is  clear." [s^ 

The  rule,  that  "  heirs  of  the  body"  in  articles  shall  be  construed 
<'  first  and  other  sons,"  does  not  appear  to  have  been  fully  established 
till  about  the  year  1720  :(<)  Lord  Hardwicke  therefore  said,  that  notice 
of  ancient  articles,  that  is,  of  articles  before  the  doctrine  was  well  settled, 
should  not  bind  a  bona  fide  purchaser.(?<)  And  afterwards,  in  a  case  of 
both  articles  and  settlement  befoi'e  marriage,  the  settlement  reciting  the 
articles,  Lord  Hardwicke  thought  that,  as  the  equity  in  this  instance 
rested  upon  a  single  authority,(«)  and  that  one  in  which  the  question 
arose  between  the  parties  and  their  representatives  and  mere  volunteers, 
the  purchaser  ought  not  to  be  bound  by  the  claim  of  the  issue. (m;)  But 
notice  of  modern  articles,  that  is,  of  articles  entered  into  since  the  clear 
establishment  of  the  rule,  will  affect  a  purchaser  ;(jc)  but,  even  then,  the 
articles  themselves  must  be  produced,  that  the  court  may  judge  i-^-toq-i 
*from  the  whole  instrument;  for  the  true  construction  depends  L  "'-' 
upon  the  words,  and  other  parts  of  the  deed  may  be  material  to  find  out 
their  meaning.  (^) 

Lord  St.  Leonards  however,  observed,  that  Cordwell  v.  Mackrill  was 
of  no  great  authority,  though  decided  by  a  great  judge  ;  and  conceived 
the  true  rule  to  be  that,  where  upon  the  whole  articles  it  was  plain  what 
construction  the  court  would  put  upon  them  had  it  been  called  upon  to 
execute  them  at  the  time  they  were  made,  they  should  be  enforced  hoicever 
dijficidt  the  construction  might  be,  even  as  against  z. purchaser  with  notice, 
but  not  after  a  lapse  of  time  where  there  was  anything  so  eqirivocal  or 
ambiguous  iu  them  as  to  render  it  doubtful  how  they  ought  to  be 
e2"ectuated.(2) 

In  a  case  where  a  residuary  legatee  had  enjoyed  for  ninteen  years  a 
copyhold  estate,  which  had  been  mortgaged  to  the  testator  in  fee,  and 
then  the  heir  of  the  testator  recovered  the  land  by  ejectment  and  mort- 

{p)  See  Bovy  v.  Smith,  2  Ch.  Ca.  126. 

Iq)  Cordwell  v.  Mackrill,  2  Ed.  347  ;  S.  C.  Amb.  516. 

(r)  Sir  W.  Grant  appears  to  have  supposed  the  decision  was  by  Lord  Camden. 

(s)  Parker  V.  Brooke,  9  Ves.  588.  {t)  By  Trevor  v.  Trevor,  1  P.  W.  622. 

(m)  Senhouse  v.  Earle,  Amb.  288 ;  accordingly  relief  not  asked  against  pur- 
chasers in  West  v.  Errissey,  2  P.  W.  349. 

(v)  West  V.  Errissey,  2  P.  W.  349.  {w)  Warrick  v.  Warrick,  3  Atk.  291. 

(x)  Senhouse  v.  Earle,  Amb.  288,  per  Lord  Hardwicke  ;  Davies  v.  Davies,  4  Beav. 
54 ;  and  see  Parker  v.  Brooke,  9  Ves.  587. 

{y)  Cordwell  v.  Mackrill,  Amb.  515;  S.  C.  2  Ed.  344. 

{z)  Thompson  v.  Simpson,  1  Dru.  &  War.  491. 


580       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

gaged  it,  and  the  residuary  legatee,  having  neglected  to  assert  his  title 
tolhe  possession  for  nine  years,  at  the  end  of  that  period  filed  a  bill  in 
chancery,  and  established  his  claim,  it  was  determined  that  the  mort- 
gagee of  the  heir  after  the  ejectment  was  not  called  upon  to  notice  the 
right  of  the  residuary  legatee;  for  it  was  not  that  <■<■  dear  hroad  ylain 
equity"  which  should  affect  a  purchaser.(a) 

A  testator  had  given  a  leasehold  estate  to  his  daughter  to  her  sole  and 
separate  use,  but  witliout  the  interposition  of  a  trustee,{V)  and  the  hus- 
band, supposing  himself  absolutely  entitled,  entered  into  possession,  and 
afterwards  mortgaged  the  premises ;  and  it  was  held  the  mortgagee  was 
bound  to  notice  the  equitable  construction  of  the  will,  as  a  doctrine  well 
understood  ;(c)  and,  the  husband  having  obtained  a  reversionary  lease 
and  mortgaged  it,  the  mortgagee  was  of  course  held  cognizant  of  the 
rule,  that  leases  obtained  under  cover  of  the  tenant  right  would  be  sub- 
ject to  the  equity  of  the  original  term.(c?) 

.,  *Where  the  trust  estate  to  be  followed  is  an  equitable  interest 

L  -I  only,  then,  prima  facie,  the  title  of  the  cestui  que  trust  must  pre- 
vail against  the  alienee ;  since,  as  between  parties  entitled  to  equities 
only,  the  general  rule  is,  quijyrior  est  tempore  potior  est  Jure  ;  that  is,  as 
between  persons  having  only  equitable  interests,  if  their  merits  are  in  all 
other  respects  equal,  priority  of  time  gives  the  better  equity. (e)  Thus  a 
party  taking  an  equitable  mortgage,  with  notice  of  a  prior  equitable 
mortgage,  cannot,  by  assignment  to  another  without  notice,  give  him  a 
a  better  title. (/) 

And  as  to  choses  in  action  of  which  the  legal  interest  is  not  transfer- 
able at  law,  a  purchaser,  whatever  amount  may  have  been  paid  by  him, 
cannot  stand  on  a  better  footing  than  the  trustee  of  whom  he  purchased, 
but  must  (in  conformity  with  the  established  rule  governing  assignments, 
of  cJioses  in  action^  hold  it  subject  to  precisely  the  same  equities  as  the 
trustee.  (^) 

II.  Within  what  limits  of  time  the  suit  must  be  instituted. 

It  is  a  well-known  rule,  that,  as  between  cestui  que  trust  and  trustee 
in  the  case  of  a  direct  trust,  no  length  of  time  is  a  bar ;  for,  from  the 
privity  existing  between  them,  the  possession  of  the  one  is  the  posses- 
sion of  the  other,  and  there  is  no  adverse  title. (/<)     It  has  hence  been 

(a)  Hardy  v.  Reeves,  4  Yes.  466  ;  S.  C.  5  A'es.  426. 

(6)  See  supra,  p.  121.  (c)  Parker  v.  Brooke,  9  Yes.  583. 

(d)  And  see  Coppin  v.  Fernyhough,  2  B.  C.  C.  291. 

(e)  See  Rice  v.  Rice,  2  Drewry,  13.  {  f)  Ford  v.  White,  16  Beav.  120. 
(g)  Ord  V.  White,  3  Beav.  357;  Cockell  v.  Taylor,  15  Beav.  103;  Clack  v. 

Holland,  19  Beav.  262 ;  Barnard  v.  Hunter,  2  Jur.  N.  S.  1213  ;  Mangles  v.  Dixon, 
3  H.  of  L.  Ca.  702. 

(A)  See  Chalmer  v.  Bradley,  1  J.  &  W.  67  ;  Bennett  v.  Colley,  2  M.  &  K.  232; 
Llevellyn  v.  Mackworth,  Barn.  449;  Wilson  v.  Moore,  1  M.  &  K.  146;  Tovrnshend 
V.  Townshend,  1  B.  C.  C.  554;  Hammond  v.  Hicks,  1  Vern.  432  ;  Norton  v.  Turvill, 
2  P.  W.  144;  Bell  v.  Bell,  Rep.  t.  Plunket,  66;  Attorney-General  v.  Mayor  of 
Exeter,  Jac.  448  ;  Heath  v.  Henly,  1  Ch.  Ca.  20  ;  Sheldon  v.  Weldraan,  1  Ch.  Ca. 
26;  Wedderburn  v.  Wedderburn,  2  Keen,  749  ;  4  M.  &  C.  41 ;  Lord  Hollis's  case, 
2  Vent.  345,  Earl  of  Pomfret  v.  Windsor,  2' Yes.  484;  Hargreaves  v.  Mitchell,  6 
Mad.  326;  Nevarre  v.  Button,  1  Yin.  Ab.  185;  Shields  v.  Atkins,  3  Atk.  563; 
Phillipo  V.  Munnings,  2  M.  &  C.  309;  Ward  v.  Arch,  12  Sim.  472;  Youne  v. 
Waterpark,  13  Sim.  204:  Gough  v.  Bult,  16  Sim.  323. 


REMEDIES    OF    THE    CESTUI    QUE    iKUST.  581 

argued,  tliat,  as  the  person  into  wliose  hands  the  estate  is  followed  is 
also,  by  construction  of  law,  a  trustee,  the  cestui  que  trust  is  entitled  to 
the  benefit  of  the  rule,  and  is  not  precluded  by  mere  lapse  of  time  from 
*establishing  his  claim.  But  the  authorities  to  the  contrary  are  p'rgQ-i 
clear  and  express,  and  cannot  leave  a  doubt. (?')  ■-         -' 

<<It  is  certainly  true,"  said  SirW.  Grant,  "that  no  time  bars  a  direct 
trust ;  but  if  it  is  meant  to  be  asserted  that  a  court  of  equity  allows  a 
man  to  make  out  a  case  of  constructive  trust  at  any  distance  of  time 
after  the  facts  and  circumstances  happened  out  of  which  it  arises,  I  am 
not  aware  that  there  is  any  ground  for  a  doctrine  so  fatal  to  the  security 
of  property  as  that  would  be  :  so  far  from  it,  that  not  only  in  circum- 
stances where  the  length  of  time  would  render  it  extremely  difficult  to 
ascertain  the  true  state  of  the  fact,  but  where  the  true  state  of  the  fact  is 
easily  ascertained^  and  where  it  is  perfectly  clear  that  relief  woidd  ori- 
ginally have  been  given  upon  the  ground  of  constructive  trust,  it  is  re- 
fused to  the  party  who,  after  long  acquiescence  comes  into  a  court  of 
equity  to  seek  that  relief  "(Jc)  And  Lord  Redesdale  observed,  "  The 
position  that  trust  and  fraud  are  not  within  the  statute  must  be  thus 
qualified  :  that  if  a  trustee  is  in  possession,  and  does  not  execute  his 
trust,  the  possession  of  the  trustee  is  the  possession  of  the  cestui  que  trust  ; 
and  if  the  only  circumstance  is,  that  he  does  not  perform  his  trust,  his 
possession  operates  nothing  as  a  bar,  because  his  possession  is  according 
to  his  title :  but  the  question  of  fraud  is  of  a  very  difi"erent  description ; 
that  is  a  case  where  a  person  who  is  in  possession  by  virtue  of  the  fraud 
is  not,  in  the  ordinary  sense  of  the  word,  a  trustee,  hut  is  to  he  constituted 
a  trustee  hy  a  decree  of  a  court  of  equity  founded  on  the  fraud  ;  and  his 
possession  in  the  mean  time  is  adverse  to  the  title  of  the  person  who 
impeaches  the  transaction  on  the  ground  of  fraud."  {fj 

*As  the  remedy  of  the  cestui  que  trttst  is  considered,  therefore,  r^-o-i-i 
on  the  footing  of  any  other  equitable  right,  it  may  be  proper  to  L  J 
examine  briefly  how  the  lapse  of  time  operates  generally  upon  suits  for 
equitable  relief. 

To  claims  in  equity  there  appear  to  be  but  three  bars  : — 1.  A  statute 
of  limitation  ;  2.  The  presumption  of  something  done  which,  if  done,  is 
subversive  of  the  plaintifi''s  right ;  3.  The  ground  of  public  policy  or 
the  inconvenience  of  the  relief. 

1.  Where  there  is  a  statutable  bar  at  lair,  the  same  period  was  always 
by  analogy,  or  rather  in  obedience  to  the  statute,  adopted  as  a  bar  in 
equity. (m\ 

(i)  Townshend  v.  Townshend,  1  B.  C.  C.  550,  see  554  ;  Bonney  v.  Eidgard,  1 
Cox,  145;  Andrew  v.  Wriglev,  4  B.  C.  C.  125  ;  Lockey  v.  Lockey,  Pr.  Ch.  518  ; 
Collard  v.  Hare,  2  R.  &  M.  675  ;  and  see  Cholmondeley  v.  Clinton,  2  J.  &  W.  190; 
S.  C.  affirmed,  4  Bligh,  4  ;  Bell  v.  Bell,  Rep.  t.  Plunket,  66;  Attorney-General  v. 
Fishmongers'  Company,  2  Beav.  588  ;  affirmed  5  M.  &  Cr.  16  ;  Portlock  v.  Gardner, 
1  Hare,  594  ;  Ex  parte  Hasell,  3  Y.  &  C.  622  ;  Wedderburn  T.  Wedderburn,  4  M. 
&  Cr.  53 ;  but  see  Attorney-General  v.  Christ's  Hospital,  3  M.  &  K.  344  (the  case 
of  a  charity). 

(k)  Beckford  v.  Wade,  17  Ves.  97. 

(I)   Hovenden  v.  Lord  Annesley,  2  Sch.  &  Lef.  633. 

(m)  See  Ex  parte  Dewdney,  15  Ves.  496  ;  Bonney  v.  Ridgard,  1  Cox.  149;  Sfeck- 
ford  V.  Wade,  17  Yes.  97  ;  Townshend  v.  Townshend,  1  B.  C.  C.  554  ;  Aggas  v. 


582       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

The  language  of  Lord  Camden  upon  this  subject  has  been  admired  as 
peculiarly  energetic.  "  A  court  of  equity,"  he  said,  "  which  is  never 
active  in  relief  against  conscience  or  public  convenience,  has  always 
refused  its  aid  to  stale  demands,  where  the  party  has  slept  upon  his  right, 
and  acquiesced  for  a  great  length  of  time.  Nothing  can  call  forth  this 
court  into  activity  but  conscience,  good  faith,  and  reasonable  diligence. 
Where  these  are  wanting,  the  court  is  passive,  and  does  nothing.  Laches 
and  neglect  are  always  discountenanced ;  and  therefore,  from  the  begin- 
ning of  this  jurisdiction,  there  was  always  a  limitation  to  suits.  But  as 
the  court  had  no  legislative  authority,  it  could  not  properly  define  the 
time  of  bar  by  a  positive  ride  to  an  hour,  a  minute,  or  a  year  :  it  was 
governed  by  circumstances.  But  as  often  as  parliament  had  limited 
the  time  of  actions  and  remedies  to  a  certain  period  in  legal  proceedings, 
the  court  of  chancery  adopted  that  rule,  and  applied  it  to  similar  cases 
in  equity  ;  for  when  the  legislature  had  fixed  the  time  at  laxc,  it  would 
have  been  preposterous  for  equity,  which,  by  its  own  proper  authority, 
r*7<?9n  ^^"i^^ys  maintained  a  limitation,  to  ^countenance  laches  beyond 
L  -I  the  period  that  laio  had  been  confined  to  by  parliament ;  and 
therefore  in  all  cases,  where  the  legal  right  has  been  barred  by  parlia- 
ment, the  equitable  right  to  the  same  thing  has  been  concluded  by  the 
same  bar."(n'^ 

Lord  Redesdale,  in  a  case  before  him,  said,  that  "if  the  equitable  title 
be  not  sued  upon  within  the  time  that  a  legal  title  of  the  same  nature 
ought  to  be  sued  upon,  the  court,  acting  by  analogy  to  the  statute,  will 
not  relieve.  If  the  party  be  guilty  of  such  laches  in  prosecuting  his 
equitable,  as  would  bar  him  if  his  title  were  solely  at  law,  he  shall  be 
barred  in  equity.'Yo)  And  in  a  subsequent  case  his  lordship  observed, 
''  it  is  said  that  courts  of  equity  are  not  within  the  statutes  of  limitations. 
This  is  true  in  one  respect ;  they  are  not  within  the  words  of  the  statutes, 
because  the  words  apply  to  particular  legal  remedies  ;  but  they  are  within 
the  spirit  and  meaning  of  the  statutes,  and  have  been  always  so  con- 
sidered. I  think  it  is  a  mistake  in  point  of  language  to  say  that  courts 
of  equity  act  merely  by  analogy  to  the  statutes  :  they  act  in  obedience  to 
them."(2:()  And  again,  "  I  think  the  statute  must  be  taken  virtually  to 
include  courts  of  equity ;  for  when  the  legislature  has  by  statute  limited 
the  proceedings  at  law  in  certain  cases,  and  provided  no  express  limita- 
tions for  proceedings  in  equity,  it  must  be  taken  to  have  contemplated 
that  equity  followed  law ;  and  therefore  it  must  be  taken  to  have  virtually 
enacted  in  the  same  cases  a  limitation  for  courts  of  equity  also."(^)  And 
the  same  doctrines  have  been  repeatedly  recognized  by  the  highest  autho- 

Pickerell,  3  Atk.  225 ;  Belch  v.  Harvey,  Appendix  to  Vend,  and  Purch.  No.  xiv. 
13th  ed. ;  White  v.  Ewer,  2  Vent.  340  ;  Knowles  v.  Spence,  1  Eq.  Ca.  Ab.  315  ; 
Pearson  v.Pully,  1  Ch.  Ca.  102  ;  Johnson  v.  Smith,  2  Burr.  961 ;  Attorney-General 
V.  Mayor  of  Exeter,  Jac.  448  ;  Salter  v.  Cavanagh,  1  Dru.  &  Walsh,  668  ;  Kingston 
V.  Lorton,  2  Hog.  166  ;  Foley  v.  Hill,  1  Phill.  399';  Hamilton  v.  Grant,  3  Dow.  44. 

(n)  Smith  v.  Clay,  cited  in  note  to  Deloraine  v.  Browne,  3  B.  C.  C.  639. 

(o)  Bond  v.  Hopkins,  1  Sch.  &  Lef.  429. 

(p)   Hovenden  v.  Lord  Annesley,  2  Sch.  &  Lef.  630. 

(?)  lb.  631  ;  and  see  Marquis  of  Cholmondeley  v.  Lord  Clinton,  2  J.  &  W.  192. 


REMEDIES    OF    THE    CESTUI    QUE    TRUST.  583 

rities,  amongst  wliom  may  be  numbered  Lord  Manners,(r)  Sir  T.  Plu- 
mer,(s)  and  Lord  Lyndhurst.(<) 

Upon  these  principles,  then,  an  equitable  claim  to  lands  could  never 
have  been  preferred  after  a  lapse  of  twenty  years  ;  *for  though  to  1-^^33-1 
writs  0/ right  and  to  formedons  much  longer  periods  were  allowed  L  J 
at  law,  yet  equity  always  looked  upon  these  as  peculiar  and  excepted 
cases,  and  guided  itself  rather  by  analogy  to  the  statute  of  James,  which 
fixed  the  limitation  to  the  prosecution  of  rights  of  entry. {ii)  And  it  may 
be  observed,  that  although  at  law  the  remainderman's  right  always  ran 
only  from  the  determination  of  the  particular  estate,  yet,  in  the  case  of 
a  bill  to  redeem  filed  by  the  person  entitled  in  remainder  to  the  equity 
of  redemption,  twenty  years'  possession  by  the  mortgagee  without  account 
or  admission  of  title,  though  partly  or  wholly  during  the  lifetime  of  the 
tenant  for  life,  barred  the  remainderman  ;  the  ground  for  the  distinction 
apparently  being,  that  the  remainderman  might  file  bill  to  redeem  during 
the  continuance  of  the  life  estate.(v)  But  where  the  mortgagee  is  also 
tenant  for  life  of  the  equity  of  redemption,  the  time  does  not  run  against 
the  remainderman  of  the  equity  of  redemption,  until  his  death  ;{w)  and 
the  same  rule  applies  where  the  mortgagee  is  tenant  in  common  with 
others  of  the  equity  of  redemption. (a;) 

Where  a  fine,  with  proclamations,  was  levied  by  a  person  claiming 
adversely,  though  a  volunteer,  without  actual  notice  or  other  imputation 
of  fraud,  a  constructive  trust  was  held  to  be  barred  after  a  lapse  of  five 
years.  (?/) 

In  the  case  of  a  statutory  bar  the  limited  period  afi'ords  a  substantive 
insuperable  obstacle  to  the  plaintiff's  claim,  and  no  plea  of  poverty,  igno- 
rance, or  mistake,  can  be  of  any  avail.  However  clear  and  indisputable 
the  title,  could  the  merits  be  inquired  into,  the  limited  time  has  elapsed, 
and  the  door  of  justice  is  closed. (2)  If  the  court  could  relieve  after 
twenty  years  on  the  ground  of  distress,  or  any  similar  plea,  so  might 
*it  after  thirty,  forty,  or  fifty ;  there  would  be  no  limitation,  and  py34-| 
property  would  be  thrown  into  confusion. (a) 

But  no  time  will  cover  a  fraud  so  long  as  it  remains  concealed :  for, 
until  discovery  (or  at  all  events  until  the  fraud  might  with  reasonable 
diligence  be  discovered,)  the  title  to  avoid  the  transaction  does  not  pro- 
perly arise. (i)     But,  after  discover^/,  the  defendant  may  avail  himself  of 

(r)    Medlicott  v.  O'Donel,  1  B.  &  B.  166. 

(s)  Marquis  of  Cholmondeley  v.  Lord  Clinton,  2  J.  &  W.  151. 

(t)  Foley  T.  Hill,  1  Phil.  405. 

(m)   Marquis  of  Cholmondley  v.  Lord  Clinton,  2  J.  &  W.  192. 

(v)  See  Gifford  v.  Hort,  1  Sch.  &  Lef.  407  note;  Blake  v.  Foster,  4  Bligh,  N.  S. 
140 ;  Corbett  v.  Barker,  1  Anstr.  and  3  Anstr.  755  ;  Harrison  v.  HoUins,  1  Sim.  & 
Stu.  471. 

(w)  Raffery  v.  King,  1  Keen,  601,  and  cases  tliere  cited  ;  Burrell  v.  Lord  Egre- 
mont,  7  Beav.  205. 

(x)  Wynne  v.  Styan,  2  Phil.  303.  (y)  Bell  v.  Bell,  Rep.  t.  Plunket,  44. 

(z)  Marquis  of  Cholmondeley  V.  Lord  Clinton,  2  J.  &  W.  139,  per  Sir  T.Plumer  ; 
Byrne  v.  Frere,  2  Moll.  171,  178,  per  Sir  A.  Hart.  But  as  to  mistake,  see  Brooks- 
bank  V.  Smith,  2  Y.  &  C.  58. 

(a)  Hovenden  v.  Lord  Annesley,  2  Seh.  &  Lef.  640. 

(b)  Blair  v.  Bromley,  2  Phil.  3*54;  Cotterell  v.  Purchase,  Cas.  t.  Talbot,  63,  per 
Lord  Talbot;  Medlicott  v.  O'Donel,  1  B.  &  B.  166,  per  Lord  Manners;  Arran  v. 


584 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


tlie  statute,  for  he  lias  a  right  to  say,  "  You  shall  not  bring  this  matter 
under  discussion  at  this  distance  of  time;  it  is  entirely  your  own  neglect 
that  you  did  not  do  so  within  the  period  limited  by  the  statute."(c) 

The  defendant  may  avail  himself  of  the  Statute  of  Limitations,  when 
the  bar  to  the  claim  appears  on  the  face  of  the  bill,  by  demurrer  :{d)  when 
it  does  not  appear  on  the  bill,  by  plea  ;{e)  or  the  defendant  may  pray  in 
his  answer  to  have  *the  same  benefit  at  the  hearing  as  if  he  had 
[*735]  pjgj^jjg^j  ti^g  statute  ;(/)  but,  if  he  neither  demur,  nor  plead,  nor 
pray  to  have  the  same  benefit  as  if  he  had  pleaded,  he  cannot  shelter 
himself  under  the  statute  at  the  time  of  the  hearing  ;{g)  though  it  seems 
the  court  itself  may  still,  in  its  own  discretion,  refuse  to  grant  relief  after 
the  limited  period. (A) 

Even  when  the  bill  charges  fraud,  the  defendant  may  demur,(/)  or 
plead,(A;)  according  to  the  circumstances  of  the  case.  If  the  plaintiff 
allege  that  he  only  discovered  the  fraud  within  the  period  limited  by 
the  statute,  the  defendant  must  by  plea  either  deny  the  fraud,  or  prove 
that  the  plaintifi"  had  knowledge  of  it. (I) 

2.  The  court,  after  great  length  of  time,  will  i^resume  some  act  to  have 
been  done,  which,  if  done,  is  a  bar  to  the  demand.(??i) 

The  period  at  which  the  court  raises  the  presumption  depends  upon 
the  circumstances  of  the  case.     As  a  general  rule,  the  court  presumes, 

Tyrawly,  cited  lb.  170;  Alden  v.  Gregory,  2  Ed.  280;  Morse  v.  Royal,  12  Yes. 
oH,  per  Lord  Erskine  ;  Bicknell  v.  Gough,  3  Atk.  558  ;  South  Sea  Company  v. 
Wymondsell,  3  P.  W.  143 ;  Booth  v.  Warrington,  4  B.  P.  C.  163  ;  Pickering  v. 
Lord  Stamford,  2  Vcs.  jun.  280,  per  Lord  Alvanley ;  Hovenden  v.  Lord  Anneslej-, 
2  Sch.  &  Lef.  634 ;  Roche  v.  O'Brien,  1  B.  &  B.  330  ;  Blennerhassett  v.  Day,  2  B. 
&  B.  118,  per  Lord  Manners  ;  Whatton  v.  Toone,  5  Mad.  54  ;  and  see  Whalley  v. 
Whalley,  1  Mer.  436;  Western  v.  Cartwright,  Sel.  Cas.  Ch.  34.  But  Sir  A.  Hart 
thought  time  would  run  against  fraud  from  the  date  of  it,  though  undiscovered, 
provided  the  person  entitled  had  knowledge  of  the  fraud  a  reasonable  time  before 
the  expiration  of  the  period.     Byrne  v.  Frere,  2  Moll.  137. 

(c)  Hovenden  v.  Lord  Annesley,  2  Sch.  &  Lef.  634,  per  Lord  Redesdale;  Western 
V.  Cartwright,  Sel.  Ch.  Ca.  34;  and  see  Mulcahj  v.  Kennedy,  1  Ridg.  337. 

{d)  Foster  v.  Hodgson,  19  Ves.  180;  Hoare  v.  Peck,  6  Sim.  51;  Beckford  v. 
Close,  cited  lb.  184  ;  Ferguson  v.  Livingston,  9  Ir.  Eq.  Rep.  202;  Hardy  v.  Reeves, 
4  Ves.  479,  per  Lord  Alvanley  ;  Hodle  v.  Healey,  1  V.  &  B.  539 ;  Hovenden  v. 
Lord  Annesley,  2  Sch.  &  Lef  637,  638  ;  Fyson  v.  Pole,  3  Y.  &  C.  266 ;  Jenner  v. 
Tracey,  cited  Cook  v.  Arnham,  3  P.  W.  28''7,  note  (B) ;  Pearson  v.  Pulley,  1  Ch. 
Ca.  102  ;  Frazer  v.  Moor,  Bunb.  54.  But  Deloraine  v.  Browne,  3  B.  C' C.  633, 
and  Lord  Hardwicke  in  Aggas  v.  Pickerell,  3  Atk.  225,  contra;  and  see  O'Kelly 
v.  Glenny,  9  Ir.  Eq.  Rep.  25. 

(e)  Aggas  V.  Pickerell,  3  Atk.  225,  and  the  cases  there  cited ;  Wych  v.  E.  L 
Company,  3  P.  W.  309 ;  Lacon  v.  Lacon,  2  Atk.  395 ;  Welford  v.  Liddel,  2  Ves. 
400  ;  Blewitt  v.  Thomas,  2  Ves.  jun.  669  ;  &c. 

(/)  Barber  v.  Barber,  18  Ves.  286  ;  &c. 

(g)  Earl  of  Pomfret  v.  Lord  Windsor,  2  Yes.  483,  per  Lord  Hardwicke  ;  Har- 
rison V.  Borwell,  10  Sim.  382;  Prince  v.  Heylin,  1  Atk.  494,  ;j«r  eundem;  and  see 
Attorney-General  v.  Christ's  Hospital,  3  M.  &  K.  344. 

{h)  Prince  v.  Heylin,  ubi  supra. 

(?)  See  Hovenden  v.  Lord  Annesley,  2  Sch.  &  Lef.  637,  disapproving  Lord  Delo- 
raine V.  Browne,  3  B.  C.  C.  633 ;  Hoare  V.  Peck,  6  Sim.  51. 

{k)  South  Sea  Company  v.  Wymondsell,  3  P.  W.  143. 

\l)  See  Mitford  on  Pleading,  269,  4th  ed. 

(m)  Pattison  v.  Hawkesworth,  10  Beav.  375  ;  and  see  Attorney-General  v.  Moor, 
20  Beav.  119. 


REMEDIES    OF    THE    CESTUI    QUE    TRUST.  585 

after  a  lapse  of  twenty  ycars,(l)  but  where  tliere  is  a  statutable  bar  at 
law,  and  of  a  different  period,  tlie  court  will  not  entertain  a  presumption 
within  a  less  time  then  the  period  fixed  by  the  statute.  Thus,  in  a 
case  at  law,  where  an  action  was  brought  for  the  recovery  of  a  quit-rent, 
no  demand  of  payment  having  been  made  for  the  preceding  thirty-seven 
years.  Baron  Eyre  was  of  opinion,  that  ^although  the  claim  was  r^yoQ-. 
not  barred  by  the  statute,  yet  after  non-payment  and  acquiescence  L  '■"  -I 
of  that  length  of  time  a  release  might  be  presumed,  and  directed  the 
jury  to  find  the  quit-rent  extinguished.  A  new  trial  was  granted,  and 
Lord  Mansfield  said,  "  There  was  no  instance  of  setting  up  any  length 
of  time  short  of  the  period  fixed  by  the  statute  as  a  bar  to  the  demand, 
and  in  cases  of  quit-rents  like  the  present  the  reason  of  carrying  back 
the  limitation  to  the  period  fixed  by  the  statute,  viz.  fifty  years,  was  the 
stronger,  because  the  consideration  was  so  trifling,  though,  if  a  real 
ground  for  supposing  a  release  or  extinguishment  appeared,  the  small- 
ness  of  the  claim  would  have  no  weight;  but  in  this  case  there  was  mere 
length  of  time,  which,  barely  as  such,  ought  not  to  be  received  as  a 
bar."(«) 

Presumptions  are  made,  not  necessarily  because  the  court  really  believes 
what  is  presumed,  but,  in  the  absence  of  evidence,  for  the  purpose  and 
from  a  principle  of  quieting  the  possession. (o)  Lord  Erskine  observed, 
"It  is  said  you  cannot  presume  unless  you  believe.  It  is  because  there 
are  no  means  of  creating  belief  or  disbelief,  that  such  general  presump- 
tions are  raised  :  upon  the  weakness  and  infirmity  of  all  human  tribunals 
in  judging  of  matters  of  antiquity,  instead  of  belief,  which  must  be  the 
foundation  of  this  judgment  upon  a  recent  transaction,  where  the  circum- 
stances are  incapable  of  forming  anything  like  belief,  the  legal  presump- 
tion holds  the  place  of  particular  and  individual  belief."(p)  Where 
positive  evidence  can  be  presented  to  the  court,  the  fact  may  be  presumed 
after  a  period  much  shorter  than  the  usual  one.  And,  on  the  other 
hand,  though  the  distance  of  time  may  be  far  greater  than  the  ordinary 
limit  for  presumption,  yet  if  there  appear  any  positive  evidence  to  nega- 
tive the  fact,  the  legal  inference  cannot  be  sustained,  for  the  rule  is 
stahit  j^rcesumpfio  donee  prohetur  in  contrarinm.  But  the  court  has 
judged  it  better  for  the  ends  of  justice,  that  presumptions  should  be 
favoured  in  law,  and  should  not  be  rebutted  by  very  slight  evidence  in 
contradiction.(^) 

*Under  the  head  of  presumption,  we  may  notice  the  subject  of  p-rgy-i 
waiver.     "  As  to  waiver,"  said  Sir  W.  Grant,  "  it  is  difficult  to  L         J 

{n)  Eldridge  v.  Knott,  Cowp.  214. 

(o)  Eldridge  v.  Knott,  Cowp.  215,  per  Lord  Mansfield;  and  see  Grenfell  v. 
Girdlestone,  2  Y.  &  C.  682. 

(jo)  Hillary  v.  Waller,  12  Ves.  266. 

{q)  Jones  v.  Turberville,  2  Ves.  jun.  13,  per  Lord  Commissioner  Eyre;  and  see 
Grenfell  v.  Girdlestone,  2  Y.  &  C.  662. 


(1)  In  Harmood  v.  Oglander,  6  Ves.  199,  8  Ves.  lOG,  the  bill  was  filed  after  a 
lapse  of  thirly-two  years,  yet  neither  Lord  Alvanley  nor  Lord  Eldon  considered  the 
length  of  time  to  bar  the  plaintiff's  demand  ;  but  in  this  case  the  parties  were 
equitable  tenants  in  common,  and  as  between  them  the  presumption  of  ouster  did 
not  arise,  or  not  in  an  equal  degree. 


586       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

say  precisely  what  is  meant  by  that  term.  With  reference  to  the  legal 
effect,  a  ivaiver  is  nothing,  unless  it  amount  to  a  release.  It  is  by  a 
release,  or  something  equivalent  only,  that  an  equitable  demand  can  be 
o'iven  away.  A  mere  waiver  signifies  nothing  more  than  an  expression 
of  intention  not  to  insist  upon  the  right,  which  in  equiti/  will  not  with- 
out consideration  bar  the  right  any  more  than  at  law  an  accord  without 
satisfaction  would  be  a  plea.  If  there  be  a  consideration  however  slight, 
I  do  not  know  that  the  court  would  not  consider  it  a  sufficient  founda- 
tion for  a  release,  or  what  is  equivalent  to  a  release."(r)  And  Lord 
Cottenham  appears  to  have  entertained  similar  views.(s) 

Waiver  must  not  be  confounded  with  acquiescence.  Acquiescence, 
properly  so  called,  is  of  two  kinds  : — First,  direct,  where  the  act  com- 
plained of  was  done  with  a  full  knowledge  and  express  approbation  of 
another,  in  which  case  a  court  of  equity  will  not  allow  that  other  to  seek 
relief  against  the  very  transaction  to  which  he  was  himself  a  party.(i;) 
Secondly,  indirect,  where  a  person  having  a  right  to  set  aside  a  transac- 
tion, stands  by  and  sees  another  dealing  with  property  in  a  manner  in- 
consistent with  that  right,  and  makes  no  objection ;  in  this  case,  also, 
a  court  of  equity  will  not  relieve.  («j 

The  court  cannot  presiivie  a  person  to  have  abandoned  his  right  so 
long  as  he  remains  in  ignorance  of  it,  or  labours  under  a  mistake  ;(^v') 
and  the  distress  of  a  person,  so  far  as  it  accounts  for  his  laches,  will 
r*'-Q«-'  P^^  tanto  weaken  the  foundation  of  the  *presumption.(ic)  So  a 
L  J  release  of  right  cannot  with  the  same  force  be  presumed  against 
a  class  of  persons,  as  against  an  individual ;  for  it  is  not  likely  that  a  person 
having  only  an  aliquot  share  in  the  property,  should  pursue  his  remedy 
with  the  same  spirit,  as  if  he  were  the  exclusive  proprietor,  (.t) 

A  bar  by  analogy  to  a  statute  may,  as  we  have  seen,  be  taken  advan- 
tage of  by  demurrer,  or  plea,  or  answer ;  but  a  presumption,  being  the 
inference  of  a  fact,  cannot  be  made  available  as  a  defence  by  demurrer. 

Thus,  in  Deloraine  v.  Browne,(y)  the  defendant  put  in  for  general 
demurrer,  that  it  appeared  by  the  bill  the  last  transaction  sought  to  be 
impeached  thereby  happened  twenty-eight  years  before  the  filing  of  the 
bill,  and  the  plaintiff  had  shown  no  cause  why  he  had  not  sooner  insti- 

(r)  Stackhouse  v.  Barnston,  10  Yes.  466. 

(s)  Duke  of  Leeds  v.  Earl  of  Amherst,  2  Phill.  p.  123  ;  but  see  Roberts  v.  Tun- 
stall,  4  Hare,  266,  per  Vice-Chancellor  Wigram. 

(?)  See  Kent  v.  Jackson,  14  Bear.  384  ;  Styles  v.  Gu)^,  1  Mac.  &  Gor.  427;  Ex 
parte  Morgan,  1  Hall  &  Twells,  328 ;  Graham  v.  Birkenhead,  &c.  Railway  Com- 
pany, 2  Mac.  &  Gor.  146. 

(m)  Duke  of  Leeds  \.  Amherst,  2  Phill.  123  ;   Phillipson  v.  Gatty,  7  Hare,  523. 

[v)  See  Marquis  of  Cholmondeley  v.  Lord  Clinton,  2  Mer.  362  ;  Randall  v. 
Errington,  10  Ves.  427;  Roche  v.  O'Brien,  1  B.  &  B.  330,  see  342  ;  Pickering  v. 
Stamford,  2  Ves.  jun.  280,  and  following  pages  ;  S.  C.  ib.  585  ;  Cholmer  v.  Bradley, 
1  J.  &  W.  65,  and  following  pages  ;  Bennett  v.  Colley,  2  M.  &  K.  232  ;  Stone  v. 
Godfrey,  5  De  Gex,  Mac.  &  Gord.  76. 

[lo)  See  Roche  v.  O'Brien,  1  B.  &  B.  342  ;  Hillary  v.  Waller,  12  Ves.  266;  Gow- 
land  V.  De  Faria,  17  Ves.  25;  Byrne  v.  Frere,  2  Moll.  171,  178. 

(x)  See  Whichcote  v.  Lawrence,  3  Ves.  752;  Anon,  case,  cited  Lister  v.  Lister, 
6  Ves.  632  ;  Kidney  v.  Coussmaker,  12  Ves.  158  ;  Hardwick  v.  Mynd,  1  Anst.  109 ; 
Attorney-General  v.  Lord  Dudley,  Coop.  146;  but  see  Elliot  v.  Merriman,  2  Atk. 
42  ;  Hercy  V.  DinwoodT.  2  Ves.  iun.  87. 

(y)  3  B.  C.  C.  633.   ' 


REMEDIES    OF    THE    CESTUI    QUE    TRUST.  587 

tuted  the  suit.  "  The  argument,"  said  Lord  Thurlow,  "  must  be,  not 
that  a  positive  limitation  of  time  has  barred  the  suit,  for  that  would  be 
a  pure  question  of  law,  but  that  from  long  acquiescence{z^  it  should  be 
presumed  that  the  frauds  charged  did  not  exist,  or  that  it  should  be  in- 
tended that  the  plaintiif  had  confirmed  the  transaction,  or  had  released, 
or  submitted  upon  such  consideration  as  to  bar  himself  from  the  general 
equity  stated  in  the  bill.  This  must  be  an  inference  of  fact,  and  not  an 
inference  of  law  ;  and  the  demurrer  must  be  overruled,  because  the  de- 
fendant has  no  right  to  avail  himself  by  demurrer  of  an  inference  of  fact 
upon  matter  on  which  a  jury  in  a  court  of  law  would  collect  matter  of 
fact  to  decide  their  verdict  if  submitted  to  them,  or  a  court  would  pro- 
ceed in  the  same  manner  in  equity.  What  limitation  of  time  will  bar  a 
suit  where  there  is  no  positive  limitation  or  under  what  circumstances 
the  lapse  of  time  ought  to  have  that  effect,  must  depend  on  the  facts 
of  the  particular  case,  and  the  conclusion  must  be  an  inference  of  fact, 
*and  not  an  inference  of  law,  and  therefore  cannot  be  made  on  r;>:YQn-i 
demurrer."(a)(l)  '-         -^ 

3.  Though  the  plaintiff's  demand  cannot  be  met  by  an  absolute  bar, 
and  no  release  of  right  can  he  presumed ;  yet,  thirdly,  relief  will  not  be 
granted  where,  if  administered,  it  would  lead  to  great  jmbh'c  or  private 
inconvenience,  {h^ 

Thus  in  a  bill  for  an  account  against  an  executor  or  administrator, 
who  is  in  equity  a  trustee,  and  not  reached  by  any  statute  of  limitation, 
though  the  presumption  of  a  final  settlement  may  be  rebutted  by  positive 
evidence,  the  court  will  not  open  the  account  at  any  distance  of  time, 
when  it  is  probable  most  of  the  parties  are  dead  and  the  vouchers  and 
receipts  are  lost.(c) 

Where  a  suit  was  prosecuted  after  a  delay  of  threescore  and  two  years. 
Lord  Keeper  Wright  said,  that  "  the  cause  being  now  within  one  year 
of  the  grand  climacteric,  it  was  fit  it  should  be  at  rest."((Z)  But  bills 
have  been  dismissed  at  the  end  of  twenty-seven  years,(c)  and  a  much 
shorter  period  would  be  a  sufficient  bar,  should  the  court  see  a  difiiculty 
in  granting  the  relief:  every  case  must  be  determined  with  reference  to 
its  own  particular  circumstances. (/) 

(2)  Lord  Thurlow  evidently  means  here  by  this  word,  mere  abstinence  from 
suing,  as  to  which  see  infra,  p.  741. 

(a)  See  the  argument  stated  in  Mitford  on  Pleading,  212,  4th  edit. 

\b)  See  Attorney-General  v.  Mayor  of  Exeter,  Jac.  448. 

(c)  Hnntou  v.  Davies,  2  Ch.  Re.  44;  Huet  v.  Fletcher,  1  Atk.  467;  Pearson  v. 
Belchier,  4  Ves.  627  ;  Hercy  v.  Dinwoody,  2  Yes.  jun.  87. 

{(l)  St.  John  V.  Turner,  2  Vern.  418. 

{e)  Campbell  v.  Graham,  1  R.  &  M.  453. 

(/)  See  Hercy  v.  Dinwoody,  2  Ves.  jun.  93  ;  Earl  of  Pomfret  v.  Lord  "Windsor, 
2  Ves.  483. 

(1)  Lord  Thurlow  considered  the  demurrer  in  this  case  to  turn  on  presumption, 
and,  on  that  supposition,  it  was  rightly  overruled  ;  but  Lord  Redesdale,  whose 
profound  knowledge  of  equity  pleading  cannot  be  disputed,  afterwards  declared 
his  opinion  that  the  defendant's  demurrer  was  good,  as  stating  not  matter  of  f\ict, 
but  what  is  matter  of  law,  viz :  the  bar  to  the  plaintiff's  demand  by  analogy,  or  in 
obedience  to  the  Statute  of  Limitations.  Hovenden  v.  Lord  Annesley,  2  Sch.  & 
Lef.  637  ;  and  see  0  Kelly  v.  Glenny,  9  Jr.  Eq.  Rep.  25. 


588       LEWIN  ON  THE  LA^  OF  TRUSTS,  ETC. 

In  Piekerias  v.  Lord  Stamford (.9)  a  testator  gave  the  residue  of  his 
personal  estate ^o  a  charity,  and  thirty-five  years  after  his  decease,  the 
next  of  kin  filed  their  bill  for  an  account,  *and  prayed  that  such 
[*740]  ^^^^  ^g  consisted  of  money  upon  mortgage  or  other  real  securities, 
might  be  declared  a  void  bequest,  and  distributable,  subject  to  debts,  kc, 
among  the  testator's  next  of  kin.  Lord  Alvanley  said  :  "  I  should  be 
happy  to  dismiss  the  bill,  if  I  were  authorized  by  law  to  say  this  court 
would  not  entertain  one  after  twenty  years,  every  disability  to  sue  being 
removed.  I  heartily  wish  it  was  so,  and  see  no  reason  why  it  should  not. 
It  is  a  fn-ievous  thing  that  the  defendants  should  be  disturbed  after  so 
Ion*'  a  lapse.  At  the  same  time,  /  knoic  no  rule  that  has  established 
thatraere  length  of  time  wiUhar.  Therefore,  that  being  the  case,  I  am 
to  say  whether,  under  the  circumstances,  a  bar  can  be  presumed. "(A) 
And  for  facilitating  the  question  of  presumption,  his  lordship  directed 
certain  previous  inquiries  by  the  master ;  and  it  appearing  from  the  re- 
port, that  no  release  or  assignment  of  their  interest  by  the  next  of  kin 
for  the  purposes  of  the  charity  could,  under  the  circumstances,  be  pre- 
sumed, his  lordship  then  had  recourse  to  the  ground  of  inconvenience. 
"  It  does  not  follow,"  he  said,  "  that  the  bill  may  not  be  dismissed, 
though  it  cannot  be  pleaded  to.  The  question  in  all  these  cases  is,  whe- 
ther there  are  motives  of  public  policy  or  private  inconvenience,  to  in- 
duce the  court  to  say,  under  all  the  circumstances,  the  suit  ought  not  to 
be  entertained  ;  and  if  great  public  inconvenience  would  arise,  and  the 
stale  demand  would  involve  the  parties  in  endless  difficulties  in  clearing 
the  accounts — difficulties  arising  from  the  negligence  of  the  other  par- 
ties in  lying  by,  I  very  much  concur  with  the  principle  Lord  Cowper 
lays  down  in  Pooley  v.  Iiay,(tj  that  a  person,  who  willingly  stands  by 
while  the  executor  pays  away  money,  shall  not  oblige  him  to  refund,  for 
this  would  be  drawing  the  executor  into  a  snare.  If  from  the  plaintiif's 
lying  by  it  is  impossible  for  the  defendants  to  render  the  accounts  he 
calls  for,  or  it  will  subject  them  to  great  inconvenience,  he  must  suffer ; 
or  the  court  will  oppose,  what  I  think  the  best  ground,  public  conveni- 
ence. It  might  have  happened,  that  the  trustees,  taking  possession  of 
the  personal  estate  and  not  aware  of  the  law,  might  in  the  course  of  so 
r*"!!!  ™^°y  years  have  conducted  ^themselves  so  as  not  to  be  able  to 
L  -I  prove  of  what  the  personal  estate  consisted  at  the  death  of  the 
testator.  They  might  have  kept  such  accounts  that  it  would  have  been 
impossible  to  determine  whether  the  plaintiffs  could  have  made  any  spe- 
cific demand  upon  any  part  of  the  personal  estate.  If  so,  I  should  have 
dismissed  the  bill.  If  the  executors  had  lost  the  accounts,  I  should  not 
have  punished  them ;  for  executors  are  not  bound  to  keep  accounts  for 
thirty  years.  The  plaintiffs  are  so  conscious  of  this,  that  they  do  not 
call  on  the  trustees  to  account  for  what  has  been  disbursed  before  any 
demand  made  ;  and  therefore  it  is  insisted  no  such  inconvenience  will 
arise,  as  they  only  desire  such  an  account  as  can  be  given,  and  are 
willing  to  take  that  part  of  the  personal  estate  that  appears  to  have  con- 
sisted of  real  securities,  and  demand  no  account  of  interest  farther  than 

ia)  2  Ves.  jun.  272.  (h)  2  Yes.  jun.  283, 

(0  1  P.  W.  355. 


REMEDIES    OF    THE    CESTUI    QUE    TK  UST.  589 

from  the  time  of  filing  the  bill.  It  appears  that  the  trustees,  who  by 
their  conduct  have  done  themselves  great  credit,  have  kept  such  accounts 
that  there  is  no  difficulty  in  finding  the  personal  estate  at  the  death  of 
the  testator.  Then,  the  only  inconvenience  will  be,  that  the  charity 
will  now  cease  to  have  so  much.  That  is  certainly  to  be  lamented,  but 
it  will  not  involve  any  person  in  difficulties  to  be  attributed  to  the  neglect 
of  the  plaintiffs.  Therefore,  desiring  to  be  understood  by  no  means  to 
give  any  countenance  to  these  stale  demands,  but  upon  the  circumstances 
that  there  is  nothing  inducing  great  public  or  private  inconvenience, 
that  the  accounts  are  found,  and  that  the  trustees  are  not  called  on  to 
account  for  what  has  been  disbursed,  I  am  bound  to  decide  in  favour 
of  the  plaintiffs. "(A-) 

The  doctrine  laid  down  by  Lord  Alvanley  in  the  case  referred  to, 
that  mere  length  of  time  will  not  bar,  requires  some  cjualification.  Lapse 
of  time  or  delay  in  suing,  unaccounted  for  by  disability  or  other  circum- 
stances, constitutes  in  the  eye  of  a  court  of  equity,  laches  disentitling 
the  plaintiff,  in  certain  classes  of  cases  at  least,  to  relief  from  the  court. 
Thus  where  a  plaintiflf  cestui  que  t}'u,'it  seeks  to  impeach  a  purchase  by 
a  trustee,  a  delay  of  less  than  twenty  years  will  bar  his  title  to  relief. (A 
So  where  a  plaintifi"  seeks  to  set  aside  a  purchase  *from  him  of  a  (-^._  ..-,.. 
reversionary  interest,(77i)  or  to  fix  a  defendant  with  a  constructive  L  '  "-I 
trust, (h)  or  comes  to  a  court  of  equity  alleginga  case  of  fraud  as  a  ground 
for  avoiding  the  operation  of  the  Statute  of  Limitations,  (o)  So  where 
an  account  is  sought  by  a  surviving  partner  against  the  estate  of  a  deceas- 
ed partner,  the  court,  even  assuming  such  case  to  fall  within  the  excep- 
tion as  to  merchants'  accounts  in  the  Statute  of  Limitations,  will  not 
assist  after  a  delay  of  thirteen  years. (j)')  And  where  the  assistance  of  the 
court  is  sought  in  a  suit  for  specific  performance, (g^)  or  in  one  partaking 
of  that  character, (?•)  the  rule  is  extremely  strict.  It  is  difficult  to  refer 
the  refusal  of  relief  by  the  court  in  the  instances  mentioned,  to  any  one 
general  principle.  In  the  cases  of  purchases  by  trustees,  or  of  claims 
founded  upon  constructive  trust  the  probability  of  alteration  of  circumstan- 
ces in  regard  to  the  property,  and  the  unfairness  of  the  plaintiff  lying  by, 
have  weighed  with  the  court.  Perhaps,  the  nearest  approach  to  general 
principle  will  be  found  under  the  head  of  <•  Public  Convenience;'' 
^^ Expedit  RepuhliccB  ut  sit  Jinis  litium." 

It  has  been  pointed  out  that  in  certain  cases  a  delay  of  less  than  twenty 
years  operates  as  a  bar ;  and  the  court  in  these  instances  departs  still 
further  from  the  analogy  offered  by  the  Statute  of  Limitations,  by  taking 
into  account  partly  time  which  may  have  elapsed  while  the  plaintifTs 
interest  was  reversionary. (s)     The  question  remains,  whether  laches  can 

{k)  2  Yes.  jun.  582,  and  following  pages. 
(l)  See  the  cases  collected,  pp.  470,  471,  supra. 
{m)   Roberts  v.  Tunstall,  4  Hare,  257. 

(n)  Clegg  V.  Edmondson,  3  Jur.  X.  S.  299  ;  and  see  Pennell  v.  Home,  3  Drewry 
337. 

(o)  Blair  v.  Ormond,  1  De  Gex  &  Sm.  428. 

(p)  Tatam  v.  Williams,  3  Hare,  347. 

(g)  Southcomb  v.  Bishop  of  Exeter,  6  Hare,  213. 

(r)  Hope  V.  Corporation  of  Gloucester,  1  Jur.  N.  S.  320. 

(s)  Roberts  v.  Tunstall,  4  Hare,  266;  and  see  Browne  v.  Cross,  14  Beav.  105 

April,  1857.— 38 


590  LEWIN    ox    THE    LAAV    OF    TRUSTS,    ETC. 

ia  general  be  relied  upon  as  a  bar  to  a  mere  dry  equitable  demand  falling 
within  the  purview  of  some  or  one  or  the  Statutes  of  Limitations  ;  and 
if,  as  suggested,  public  convenience  be  the  true  ground  for  holding 
laches  to  be  a  bar,  then  it  would  seem  that  the  legislature  itself  having 
prescribed  a  term  of  limitation  which  it  deems  sufficiently  short,  the 
court  ought  not  further  to  abridge  that  term.  Accordingly,  we  find  the 
*present  lord  chancellor  expressing  himself  to  the  effect,  "  that 
[*743J  ^^^  simple  abstaining  from  legal  proceeding  is  unimportant,  unless 
the  party  aggrieved  continues  inactive  so  long  as  to  bring  the  case  within 
the  purview  of  the  Statute  of  Limitations  -"{t)  and  Lord  Langdale,(zt)  and 
Lord  Cottenham,(v)  appear  to  have  entertained  the  same  views. 

We  may  now  introduce  the  late  act  for  the  limitation  of  actions  and 
suits. (-^fj) 

By  the  24th  section  it  is  declared,  that  "  no  person  claiming  any  land 
or  rent  in  equity  shall  bring  any  suit  to  recover  the  same,  but  within  the 
period  during  which  by  virtue  of  the  provisions  thereinbefore  contained 
he  might  have  made  an  entry  or  distress,  or  brought  an  action  to  recover 
the  same  respectively,  if  he  had  been  entitled  at  law  to  such  estate,  inte- 
rest, or  right  in  or  to  the  same  as  he  shall  claim  therein  in  equity." 

The  25th  section  declares,  that,  "  when  any  land  or  rent  shall  be  vested 
in  a  trustee  upon  any  express  trust,  the  right  of  the  cestui  que  trust,  or 
any  person  claiming  through  him,  to  bring  a  suit  against  the  trustee,  or 
any  person  claiming  through  him,  to  recover  such  land  or  rent,  shall  be 
deemed  to  have  first  accrued,  according  to  the  meaning  of  the  act,  at, 
and  7iot  before,  the  time  at  icliich  such  land  or  rent  shall  have  Leen  con- 
veyed to  a  purchaser  /or  valuable  consideration,  and  shall  then  be  deemed 
to  have  accrued  only  as  against  such  purchaser,  and  any  person  claiming 
through  him." 

The  26th  section  declares,  that  "  in  every  case  of  a  concealed  fraud 
the  right  of  any  person  to  bring  a  suit  in  equity  for  the  recovery  of  any 
laud  or  rent  of  which  he,  or  any  person  through  whom  he  claims,  may 
have  been  deprived  by  such  fraud,  shall  be  deemed  to  have  first  accrued 
at,  and  not  before,  the  time  at  which  such  fraud  shall,  or  with  reasonable 
diligence  might,  have  been  first  known  or  discovered." 

By  the  27th  section  it  is  provided,  that  "  nothing  in  the  act  contained 
r*~4.4.1  ^^^^^  ^®  deemed  to  interfere  with  any  rule  or  jurisdiction  *of 
L  -I  courts  of  equity  in  refusing  relief  on  the  ground  of  acquiescence 
or  otherwise,  to  any  person  whose  right  to  bring  a  suit  might  not  be 
barred  by  virtue  of  that  act." 

The  40th  section  declares  that  no  action  or  suit  or  other  proceeding 
shall  be  brought  to  recover  any  sum  of  money  charged  upon  land  at  law 
or  in  equity  or  any  legacy, (^x)  but  within  twenty  years  from  the  accruer 
of  the  right,  unless  there  has  been  part  payment  of  principal  or  interest, 
or  some  acknowledgment. 

(t)  Rochdale  Canal  Company  v.  King,  2  Sim.  N.  S.  89. 
[u)  Mehrtens  v.  Andrews,  3  Beav.  16. 

[v)  Duke  of  Leeds  v.  Earl  of  Amherst,  2  Phil.  126.  («■)  3  &  4  W.  4,  c.  27. 

(x)  The  word  leffaci/  includes  a  residue  or  share  of  residue ;  Prior  v.  Horniblow, 
2  Y.  &  C.  201 ;  Christian  v.  Devereux,  12  Sim.  264. 


REMEDIES    OF    THE    CESTUI    QUE    TRUST.  591 

And  the  42nd  section  enacts,  that  no  arrears  of  rent  or  of  interest  in 
respect  of  any  sum  of  money  charged  vpon,  or  payable  out  of,  any  land 
or  rent,  shall  be  recovered  by  any  action  or  suit,  but  within  six  years 
next  after  the  same  shall  have  become  due,  or  after  an  acknowledgment 
of  the  same  in  writing  shall  have  been  given  to  the  person  entitled  thereto 
or  his  agent,  signed  by  the  person  by  whom  the  same  is  payable  or  his 
agent. 

Thus  twenty  years'  possession  is  now  a  statutory  bar  to  suits  in  equity 
in  respect  of  equitable  interest,  as  well  as  to  actions  at  law  upon  legal 
rights ;  but  in  case  of  disability  a  term  of  ten  years  is  allowed  by  the 
16th  section  next  after  the  cesser  of  the  disability,  but  by  the  17th  sec- 
tion no  suit  can  be  brought  after  the  lapse  of  forty  years  from  the  accruer 
of  the  right  to  sue,  whatever  disabilities  may  have  existed. 

As  it  is  the  nature  of  a  trust  that  the  legal  estate  should  be  in  one 
person  and  the  equitable  interest  (which  may  or  may  not  carry  the  right 
of  possession)  in  another,  it  is  obvious  that  mere  possession  would  not 
be  a  fair  criterion  by  which  to  regulate  the  equitable  estate.  On  the 
one  hand,  the  possession  of  the  trustee  may  be  according  to  the  title  and 
should  not  prejudice  the  cestui  que  trust;  and  on  the  other  hand,  the 
cestui  que  trust,  when  let  into  possession,  is  tenant  at  will  to  the  trustee, 
who  ought  not,  therefore,  to  be  ousted  by  an  act  in  the  due  execution  of 
the  trust.  The  statute,  therefore,  has  declared  by  the  25th  section  that, 
as  between  the  trustee  and  any  person  claiming  through  him,  and  the 
cestui  que  trust  *and  any  person  claiming  through  him,  time  shall  r^-jtr-^ 
not  run  until  there  has  been  a  conveyance  to  a  purchaser  for  L  J 
valuable  consideration.  The  trust  estate  may,  therefore,  be  followed  by 
the  cestui  que  trust,  not  only  as  against  the  trustee,  but  as  against  all 
volunteers  claiming  under  him  ;(^)  but  so  soon  as  the  estate  is  conveyed 
to  a  purchaser  for  valuable  consideration,  as  if  it  be  made  the  subject  of 
a  marriage  settlement,  the  time  begins  to  run. (2)  No  possession  by  a 
purchaser  for  valuable  consideration,  short  of  twenty  years,  will  be  a 
bar.(a)  And  if  the  cestui  que  trust  be  a  remainderman,  the  time  it  seems 
will  not  run  until  the  remainder  falls  into  possession. (ij 

The  25th  section  applies  only  to  express  trusts  ;  it  is,  therefore,  neces- 
sary to  ascertain  with  precision  what  is  meant  by  the  phrase.  Trusts,  as 
regards  the  provisions  of  the  statute,  may  be  considered  as  divided  into 
express  trusts  and  constructive  trusts ;  the  former  arising  upon  the  lan- 
guage of  some  written  instrument,  and  the  latter  such  as  are  elicited  by 
the  principles  of  a  court  of  equity  from  the  acts  of  parties. 

It  is  not  necessary  to  use  the  word  trust  in  order  to  create  an  express 
trust,(c)  but  any  language  that  would  in  equity  raise  or  imply  a  trust  will 
be  deemed  an  express  trust.     If,  therefore,  land  be  devised  to  a  person 

(y)  Heenan  v.  Berry,  2  Jon.  &  Lat.  303 ;  Salter  v.  Cavanagh,  1  Dru.  &  Walsh, 
668 ;  Blair  v.  Nugent,  3  Jon.  &  Lat.  658 ;  9  Jr.  Eq.  Rep.  400  ;  Ravenscroft  v.  Frisby, 
2  Coll.  16;  and  see  Dixon  v.  Gayfere,  17  Beav.  421  ;  Hawksbee  v.  Hawksbee,  11 
Hare,  230. 

(z)  Petre  v.  Petre,  1  Drewry,  3'i'l.     {a)  Attorney-General  v.  Flint,  4  Hare,  147. 

(6)  Thompson  v.  Simpson,  1  Dru.  &  War.  489  ;  Attorney-General  v.  Magdalen 
College,  18  Beav.  pp.  239,  250. 

(c)  Charitable  Donations  v.  Wybrants,  2  Jon.  &  Lat.  197. 


592       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

upon  trust  to  receive  the  rents  and  thereout  to  pay  certain  arrears,  the 
surplus  rents  result  to  the  heir-at-law  upon  the  face  of  the  instrument, 
and  this  being  an  express  trust,  the  heir-at-law  is  not  barred  by  twenty 
years'  possession  by  the  trustee  (d)  p  n         • 

*But  trusts  arising  by  the  construction  of  a  court  ot  equity 
[*746]  ^^^^  ^j^p  j^^^  Qf  parties,  will  not  be  saved  by  the  clause  relating 
to  express  trusts,  as  if  the  devisee  for  life  of  a  leasehold  estate  renew  in 
his  own  name,  the  statute  will  begin  to  run  from  the  time  of  the  re- 
newal.(e)  ,        ,      -        .     .         „ 

Mere  charges  might  have  been  held  to  fall  under  the  description  ot 
express  trusts,  but  that  they  are  dealt  with  by  the  statute  under  a  separate 
section,  viz.,  the  40th  ;  a  circumstance  which  shows  that  they  were  meant 
to  be  distinguished  from  express  trusts.  If,  therefore,  an  estate  be 
devised  to  A.,  charged  with  1000?.  in  favour  of  B.,  or  "  X.  paying  1000?. 
to  B.,  although  a  bill  will  lie  in  equity  to  have  the  sum  raised  on  the 
footing  of  a  trust,  yet  it  is  not  an  express  trust  within  the  meaning  of 
the  statute,  and  would,  therefore,  be  barred  at  the  end  of  twenty  years.  (/) 

But  a  charge  in  form  may  be  an  express  trust  in  fact,  if  the  grantee 
or  devisee  be  invested  with  any  fiduciary  character,  as  if  an  estate  in 
Ireland  be  devised  to  A.,  subject  to  a  rent-charge  for  the  maintenance  of 
a  schoolmaster  to  be  appointed ;  here  no  trustee  is  interposed  between 
the  devisee  and  the  intended  recipient,  and  the  trust,  therefore,  fastens 
itself  on  the  conscience  of  the  devisee. (,5^)  So,  if  an  estate  be  devised  to 
trustees  and  their  heirs,  upon  trust  to  convey  to  J.  W.  for  life  charged 
with  annuities  to  certain  corporations  for  charitable  purposes.  Here, 
although  the  corporations  are  interposed  as  trustees,  yet,  as  the  devisees 
are  bound  to  execute  a  settlement,  so  as  to  secure  the  annuities  and  retain 
the  legal  estate  in  the  meantime  they  are,  until  the  settlement  has  been 
executed,  trustees  for  the  charity.(A)  So,  though  a  simple  charge  of  the 
testator's  debts  falls  within  the  40th  section,  and  the  creditor  is  barred 
after  twenty  years, (i)  yet,  if  the  will  be  so  worded  as  to  impose  on  the 
devisees  subject  to  *the  charge  the  personal  obligation  of  exert- 
L  *  J  ing  themselves  actively  in  paying  the  debts,  it  becomes  an  express 
trust  and  falls  within  the  exception  of  the  2.5th  section. (/1-) 

A  charge  upon  an  estate  may  at  the  same  time  be  a  mere  charge  within 
the  40th  section,  as  between  some  parties,  while  it  is  an  express  trust 
within  the  25th  section,  as  between  other  parties.     If,  for  instance,  an 

{(l)  Salter  v.  Cavanagh,  1  Dru.  &  Walsh,  6G8  ;  and  see  Charitable  Donations  v. 
Wybrants,  2  Jon.  &  Lat.  196,  7  Ir.  Eq.  Rep.  580.  In  Lord  St.  John  v.  Boughtou, 
9  Sim.  223,  where  was  an  express  trust  to  sell  and  pay  debts,  the  V.  C.  of  England 
held  that  as  no  part  of  the  produce  of  the  sale  had  been  set  apart  for  debts,  the 
case  was  not  within  the  exception  of  the  25th  sect.,  but  fell  under  the  40th  sect. 
This,  it  is  conceived,  cannot  be  maintained. 

(e)  Petre  v.  Petre,  1  Drewry,  371. 

(/)  Knox  V.  Kelly,  6  Ir.  Eq.  Rep.  279 ;  Toft  v.  Stephenson,  7  Hare,  1  ;  Hodge 
V.  Churchward,  16  Sim.  71  ;  Francis  v.  Grover,  5  Hare,  39;  Hughes  v.  Kelly,  3 
Dru.  &  War.  482  ;  and  see  Harrison  v.  Duignan,  2  Drur.  &  War.  295. 

(g)  Attorney-General  v.  Persse,  2  Dru.  &  War.  67. 

{h)  Charitable  Donations  v.  Wybrants,  2  Jon.  &  Lat.  182,  7  Ir.  Eq.  Rep.  580. 

(i)  Dundas  v.  Blake,  11  Ir.  Eq.  Rep.  138,  and  cases  there  cited. 

[k)  Hunt  V.  Bateraan,  10  Ir.  Eq.  Rep.  360,  and  cases  there  cited. 


REMEDIES    OF    THE    CESTUI    QUE    TRUST.  593 

estate  be  devised  to  A.  and  liis  heirs,  subject  to  a  charge  of  500?.  to  B. 
and  C.  upon  certain  trusts,  here,  as  between  A.  and  the  two  trustees,  it 
is  a  mere  charge  and  will  be  barred  in  twenty  years,  but,  as  between  the 
two  trustees  and  their  ccstnis;  que  trust,  it  is  an  express  trust  and  the 
time  of  the  bar  as  to  them  will  be  extended  accordingly.  And  if  a  term 
be  limited  to  trustees  for  the  purpose  of  securing  the  charge,  the  rights 
of  the  cest%ds  que  trust  will  not  be  barred  so  long  as  the  term  vested  in 
their  trustees  remains  unbarred. (/) 

To  make  the  40th  section  operate  as  a  bar  there  must  be  a  hand  to 
receive,  and  capable  of  signing  a  receipt,  as  if  400/.  be  charged  on  an 
estate,  and  by  the  same  deed  it  is  assigned  to  trustees  upon  trust  for  A. 
and  B.  for  their  lives,  and  after  the  death  of  the  survivor  for  their  chil- 
dren, but  no  power  of  signing  receipts  is  given  to  the  trustees,  and,  on 
the  contrary  the  court  collects  the  intention  that  the  trustees  were  not  to 
raise  the  money  till  after  the  death  of  the  surviving  tenant  for  life,  the 
statute  will  not  begin  to  run  until  the  latter  period.  (??i) 

It  will  be  observed  that,  by  the  25th  section,  the  cestui  qtie  trust  and 
any  person  claiming  through  him  maj'  enforce  the  trust  against  the  trus- 
tee and  any  person  claiming  through  him,  but  both  trustee  and  cestui 
que  trust  may  be  ousted  by  the  intrusion  of  a  third  title,  and  if  so,  the 
statute  will  begin  to  run  from  the  dispossession  of  the  trustee  and  cestui 
que  trust.  Thus,  in  1810,  a  legal  estate  was  vested  in  trustees  upon 
trust  for  five  tenants  in  common,  but  from  that  time  till  the  filing  of  the 
bill  in  1842,  four  of  the  tenants  in  common  received  the  rents  to  the 
^exclusion  of  their  co-tenant  and  of  the  trustees  who  never  exe-  r-i(yj\cr\ 
cuted  their  duty ;  and  it  was  held  that  there  had  been  an  ouster  L  J 
of  both  trustees  and  cestui  que  trust,  and  that  the  right  of  such  cestui 
que  trust  was  barred  by  the  statute. (?«] 

But  possession  by  one  cestui  que  trust,  where  it  is  according  to  the 
title  (even  where  a  trustee  might  at  any  time,  and  in  the  strict  discharge 
of  his  duty  ought  to,  have  taken  possession,)  will  not  give  a  title  to  the 
cestui  que  trust  in  possession  to  the  ouster  of  the  trustee  and  the  other 
cestuis  que  trust  who  claim  under  him,  otherwise  the  most  mischievous 
consequences  would  follow  from  the  statute. (0)  In  these  cases  the  ces- 
tui que  trust  in  possession  is  the  tenant  at  will  of  the  trustees,  and  until 
that  will  is  determined,  the  possession  of  the  cestiii  que  trust  is  the  pos- 
session of  the  trustee. (^>)  But  the  doctrine  that  a  cestui  que  trust,  who 
is  in  possession  with  the  consent  or  acquiescence  of  the  trustee,  must  be 

[l)  Young  V.  Lord  Waterpark,  13  Sim.  202,  on  appeal,  15  L.  J.  N.  S.  Ch.  63  ; 
and  see  Ward  v.  Arch,  12  Sim.  472. 

{m)  M'Carthy  v.  Daunt,  11  Jr.  Eq.  Rep.  29.  Assuming  tliat  the  trustees  could 
not  sign  a  receipt,  the  decision  was  right  ;  but  it  was  a  bold  step  to  say  that  the 
trustees  had  not  such  a  power. 

[n)  Burroughs  v.  M'Creight,  1  Jon.  &  Lat.  290,  T  Ir.  Eq.  Rep.  49;  Charitable 
Donations  v.  Wybrants,  2  Jon.  &  Lat.  198  ;  7  Ir.  Eq.  Rep.  580 ;  Law  v.  Bagwell, 
4  Dru.  &  War.  409. 

(0)  Young  V.  Lord  Waterpark,  13  Sim.  202.  On  appeal,  15  L.  J.  N.  S.  Ch.  63; 
Cox  V.  Dolman,  2  De  G.  M.  &  G.  592. 

(p)  Garrard  v.  Tuck,  8  Com.  B.  Rep.  231 ;  13  Jur.  871  ;  and  see  Doe  v.  Phillips, 
10  Q.  B.  Rep.  130,  which  is  not  at  variance  with  Garrard  v.  Tuck,  as  in  the  former 
case  the  tenancy  at  will  had  not  been  determined. 


594       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

regarded  as  his  tenant  at  will,  does  not  prevent  a  third  party  who  obtains 
possession  from  the  ceshii  qve  trust,  and  holds  for  twenty  years  without 
payment  of  rent  or  acknowledgment  of  title  to  either  cestui  que  trust  or 
trustee,  from  setting  up  the  statute  as  a  bar ;  or  at  all  events,  the  third 
party  may  plead  the  statute  where  the  cestui  que  trust  was  never  in 
actual  occupation. (g') 

The  42nd  section  of  the  act,  limiting  the  recovery  of  arrears  of  rent 
or  interest  to  the  last  sis  years  only,  has  no  application  to  cases  of  ex- 
press trusts  within  the  25th  section,  but  the  cestui  que  trust  may  recover 
from  his  trustee  the  whole  arrearages  from  the  commencement  of  the 
title.(y)  And  under  the  42nd  section,  as  under  the  40th,  where  there 
is  a  subsisting  term  not  *barred,  upon  which  the  trustee  may 
L'  ''*'^J  obtain  possession,  the  whole  arrearages  may  be  recovered.(s) 

Thus,  in  Cox  v.  Dolman, (A  a  testator  devised  his  lands  to  the  use  of 
trustees  for  ninety-nine  years  upon  trust  to  pay  certain  annuities,  and 
subject  thereto  to  the  use  of  J.  Cox  for  life,  with  remainder  over ;  and 
after  the  death  of  S.  Cox,  one  of  the  annuitants  filed  a  bill  to  have  the 
arrears  of  the  annuity  raised  out  of  the  estate.  The  executors  of  S.  Cox 
pleaded  the  statute  as  a  bar  to  more  than  six  years'  arrears,  but  the 
court  held  that  it  was  the  case  of  an  express  trust,  and  that  the  tenant 
for  life  had  taken  possession  subject  to  the  trust,  and  that  the  term  was 
a  subsisting  one,  upon  which  the  trustees  might  at  any  time  have 
recovered,  and  the  plaintiff  was  declared  entitled  to  the  whole  arrears, 
which  were  to  be  paid  out  of  the  assets  of  the  tenant  for  life  up  to  the 
day  of  his  death,  and  since  his  death  by  the  remainderman.  The  direct 
remedy  was,  no  doubt,  to  have  the  whole  arrears  raised  by  sale  or  mort- 
sasie  of  the  term,  but  as  the  remainderman  would  be  entitled  to  recover 
the  arrears  that  accrued  in  the  lifetime  of  the  tenant  for  life  from  his 
estate,  the  court,  to  avoid  circuity,  decreed  payment  at  once  out  of  the 
tenant  for  life's  assets. 

The  case  of  charities  requires  a  separate  consideration.  It  was  at  first 
doubted  whether  they  were  at  all  affected  by  the  statute  ;(?<)  but  it  was 
afterwards  held  that  they  were  within  the  operation  of  the  act,  though 
they  would  generally  be  protected  by  the  25th  section,  relating  to  express 
trusts. (2;)  If,  however,  the  principles  for  the  first  time  laid  down  by  the 
master  of  the  rolls  in  Attorney-General  v.  Magdalen  College, (u')  be 
recognized  by  the  other  courts,  it  will  be  difficult  to  find  a  case  in  which 
the  rights  of  the  charity  can  be  barred. 

The  rents  of  certain  premises  in  South wark  had  been  applied  for  more 
than  a  year  by  the  rector  and  churchwardens  of  St.  Olave  for  the  benefit 
r*7'sm  ^^  ^^^  P°*^^  ^^  ^^^^  parish.  In  1790,  the  *rector  and  church- 
■-         J  wardens,  and  two  inhabitants,  by  a  feoffment  with  livery  of  seisin 

(3)  Melling  v.  Leak,  16  Com.  B.  Rep.  652. 

M  Playfair  v.  Cooper,  17  Beav.  187 ;  Gough  v.  Bult,  16  Sim.  323. 
(s)  Cox  V.  Dolman,  2  De  Gex,  Mac.  &  Gord.  592  ;  Snow  v.  Booth,.  2  K.  &  J.  132  ; 
Earl  of  Mansfield  v.  Ogle,  1  Jur.  N.  S.  414.  (t)  2  De  G.  M.  &  G.  592, 

(m)  Incorporated  Society  v.  Richards,  1  Dru.  &  War.  287,  288. 
(v)  Charitable  Donations  v.  Wybrants,  2  Jones  and  Lat.  182  ;  7  Ir.  Eq.  Rep.  580. 
(w)  18  Beav.  223;  Attorney-General  v.  Magdalen  College,  has  been  reversed  in 


REMEDIES    OF    THE    CESTUI    QUE    TRUST.  595 

and  a  fine,  conveyed  the  premises  to  Morden  College,  in  consideration  ot 
a  rent-charge  reserved.  In  1852,  an  information  was  filed  by  the 
attorney-general  to  set  aside  the  conveyance,  and  the  questions  eventually 
resolved  themselves  into  the  eff'ect  of  the  Statute  of  Limitations.  Under 
these  circumstances  it  was  ruled  by  the  master  of  the  rolls  :  1st,  that  as 
no  legal  estate  appeared  to  have  been  vested  in  the  rector  and  church- 
wardens and  two  inhabitants,  the  conveyance  of  1790  was  a  disseisin, 
and  not  a  conveyance  by  the  trustees  within  the  25th  section ;  2nd,  that 
trustees  of  a  charity  who  make  a  conveyance  are  barred  after  twenty 
years,  but  that  the  cestuis  que  trust  have  an  independent  right  to  sue,  as 
to  which,  time  does  not  begin  to  run  until  there  is  some  cestui  que  trust 
who  is  capable  of  suing  •,(x)  Srdly,  that  the  attorney-general,  as  he  had 
no  legal  or  beneficial  interest  in  the  property,  was  not  such  a  person  a< 
could  sue,  within  the  meaning  of  the  25th  section ;  4thly,  that  the 
rector  and  churchwardens,  who  in  this  case  had  no  legal  or  beneficial 
interest,  were  not  such  persons  within  the  meaning  of  the  act ;  5thly, 
that  the  poor  of  the  parish  were  not  such  persons,  inasmuch  as  they 
could  not  institute  a  suit  on  their  own  behalf,  but  an  information  must 
be  filed  in  the  name  of  the  attorney-general ;  and,  under  these  circum- 
stances, the  court  set  aside  the  conveyance,  and  directed  it  to  be  can- 
celled. The  cestuis  que  trust  of  a  charity  are,  from  the  nature  of  the  case, 
not  in  a  position  to  litigate  with  their  wealthy  neighbours,  and  as  an  infor- 
mation in  the  name  of  the  attorney-general,  who  alone  can  sue,  must  in 
general  be  at  the  relation  of  other  parties,  who  should  be  liable  for  costs, 
there  can  be  no  doubt  that  charities  would  greatly  sufi'er  if  they  were 
bound  by  the  same  lapse  of  time  as  in  the  case  of  private  persons.  It  is 
not  unlikely,  therefore,  that  the  doctrines  thus  broadly  laid  down  by  the 
master  of  the  rolls  may  be  followed  by  other  judges. 

III.  We  shall  briefly  notice  to  what  extent  a  court  of  equity,  upon 
recovery  of  the  estate,  will  direct  an  account  against  the  defendant  of  the 
mesne  rents  and  profits. 

*The  general  rule  is,  that  a  cestui  que  trust,  by  establishing  r*Tr-|-i 
his  claim  to  the  land,  has  thereby  established  a  right  to  the  mesne  L  J 
rents  and  profits  from  the  very  commencement  of  his  title ;  for  if  the 
corpus  of  the  estate  was  his,  the  rents  and  profits,  which  ought  to  follow 
the  corpus,  were  tortiously  intercepted  by  the  wrongful  possessor. (.y) 

But  to  the  above  rule  several  exceptions  must  be  made  :  for, — 

1.  It  would  seem  the  cestui  que  trust  cannot  enforce  an  account  beyond 
the  period  of  the  preceding  six  years ;  provided,  at  least,  the  defendant 
has  pleaded  the  Statute  of  Limitations  in  bar.(^) 

{x)  Attorney-General  v.  Pearce,  2  Dru.  &  War.  57. 

{y)  Dormer  v.  Fortescue,  Ridg.  Rep.  t.  Hardwicke,  183;  S.  C.  3  Atk.  130,  per 
Lord  Hardwicke  ;  Hobson  v.  Trevor,  2  P.  W.  191 ;  Coventry  v.  Hall,  2  Ch.  Ca.  134  ; 
Attorney-General  v.  Floyer,  2  Vern.  748 ;  Duke  of  Norfolk's  case,  3  Ch.  Ca.  52  ; 
Stackpole  v.  Davoren,  1  B.  P.  C.  9  ;  and  see  Turner  v.  Buck,  22  Vin.  Ab.  21.  In 
Thomas  v.  Thomas,  2  K.  &  J.  70,  Vice-Chancellor  Wood  appears  to  have  considered 
the  rule  to  be  to  give  an  account  from  the  date  only  of  tiling  the  bill. 

{z)  Love  v.  Bade,  Rep.  t.  Finch,  269;  Reade  v.  Reade,  5  Ves.  749,  750;  Har- 
mood  V.  Oglander,  6  Ves.  215;  Drummond  v.  Duke  of  St.  Albans,  5  Ves.  439  ; 
Hercy  v.  Ballard,  4  B.  C.  C.  4G8;  Stackhouse  v.  Barnston,  10  Ves.  470  :  Money- 
penny  v.  Bristow,  2  R.  &  M.  125. 


596       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

2.  If  the  defendant  was  a  bona  fide  possessor,  that  is,  if  he  had  no 
notice  of  the  plaintiff's  title  expressly  given  him,  and  had  no  deeds  or 
writings  in  his  custody  which  showed  the  title  of  the  plaintiff  or  any 
stranger,  in  such  case  the  account  of  the  mesne  rents  and  profits  will 
be  restricted  to  the  time  of  filing  the  bill  ;(o)  and  no  further  account 
will  be  o-ranted,  though  the  plaintiff  was  an  infant,  and  the  defendant 
an  express  trustee,  but  ignorant  of  his  own  true  character.(6)  How- 
ever, such  rents  and  profits  as  accrued  before  the  filing  of  the  bill, 
but  never  came  to  the  hands  of  the  defendant,  as  money  paid  into  court, 
will  follow  the  right  to  the  land,  and  be  decreed  to  the  plaintiff. (c) 

3.  If  the  cestui  que  trust  be  guilty  of  laches,  the  account  will  not  be 
P^-p.^,  carried  further  back  than  to  the  filing  of  the  bill,  for  it  *was  the 
L  -I  plaintiff's  own  fault  that  he  did  not  institute  his  suit  at  an  earlier 
period  ;(<'Z)  and  if  it  be  a  case  o?  great  laches,  the  court  will  show  its  dis- 
pleasure by  not  directing  an  account  beyond  the  date  of  the  decree. (e) 

In  an  old  case,  a  cestui  que  trust  had  filed  his  bill  for  an  estate  upon 
the  ground  of  an  equitable  title,  and  charged  the  defendant  with  the 
receipt  of  the  mesne  rents  and  profits,  but  prayed  only  for  a  conveyance 
of  the  lands,  omitting  to  pray  specially  for  any  account  of  the  rents.  A 
conveyance  was  decreed,  and  no  account  ordered;  but  afterwards  the 
cestui  que  trust  filed  a  second  bill  for  the  exclusive  purpose  of  obtaining 
an  account  of  the  mesne  rents  and  profits,  and  the  court  so  decreed  it.(/) 

The  order  to  account  for  mesne  rents  and  profits  will  not,  except  in  a 
case  of  gross  fraud, (^)  contain  the  words,  "  which,  without  neglect  or 
default,  the  defendant  might  have  received,"  and  a  direction  to  make 
all  just  allowances  in  taking  the  account  will  be  inserted. (A) 

The  assignee  who  has  had  the  perception  of  the  rents  and  profits,  will, 
in  the  first  instance,  account  for  them,  not,  however,  with  interest. (<") 
But  if  the  assignee  be  insolvent,  the  trustee  who  tortiously  assigned  will 
then  be  answerable  for  the  mesne  rents  and  profits  personally. (/i;)(l) 

{a)  Dormer  v.  Fortescue,  Ridg.  Rep.  t.  Hardwicke,  183  ;  S.  C.  3  Atk.  134,  per 
Lord  Hardwicke ;  Pulteney  v.  Warren,  6  Ves.  93,  per  Lord  Eldon ;  Edwards  v. 
Morgan,  M'CleL  541,  see  554,  555  ;  Forder  v.  Wade,  4  B.  C.  C.  521. 

(6)  Drummond  v.  Duke  of  St.  Albans,  5  Ves.  433,  see  439.  (c)  S.  C. 

(d)  Dormer  v.  Fortescue,  Ridg.  Rep.  t.  Hardwicke,  183;  S.  C.  3  Atk.  130,  per 
Lord  Hardwicke;  Cook  v.  Arnham,  2  Eq.  Ca.  Ab.  235  ;  Pettiward  v.  Prescott,  7 
Ves.  541  ;  Bowes  v.  East  Loudon  Waterworks'  Company,  3  Mad.  375  ;  and  see 
Pickett  V.  Loggou,  14  Ves.  215  ;  Kidney  v.  Coussmaker,  12  Ves;  158;  Schroder  v. 
Schroder,  Kay,  591. 

(e)  Acherley  v.  Roe,  5  Ves.  565.  (/)  Hall  v.  Coventry,  2  Ch.  Ca.  134. 
{g)  Stackpole  v.  Davoren,  1  B.  P.  C.  9.       (/;)  Howell  v.  Howell,  2  M.  &  C.  478. 
(i)  Macartney  v.  Blackwood,  Ridg.  Lapp.  &  Sob.  602. 

[k)  Vandebende  v.  Livingston,  3  Sw.  625. 

(1)  As  the  subject  of  accounting  for  mesne  rents  and  profits  in  equity  is  nowhere 
to  be  found  in  any  systematic  form,  the  following  remarks  may  perhaps  be  found 
useful. 

An  account  of  rents  and  profits  may  be  sought,  either  independently  of  relief 
respecting  the  corpus  of  the  land,  or  as  incident  or  collateral  to  it. 

I.  Where  the  account  is  sought  independently  of  other  relief,  if  it  be  directed 
against  a  person  who  is  an  express  trustee,  then,  as  the  statutes  of  limitation  do  not 
run  between  trustee  and  cestui  que  trust,  an  account  will  be  directed  from  the  time 


REMEDIES    OF    THE    CESTUI    QUE    TRUST.  597 


*SECTION  II.  [*753] 

THE   RIGHT    OF    ATTACHING   THE   PROPERTY    INTO    WHICH    THE   TRUST 
ESTATE    HAS    WRONGFULLY   BEEN    CONVERTED. 

If  the  trust  estate  has  been  tortiously  disposed  of  by  the  trustee,  the 


the  rents  were  withdrawn.     See  Attorney-General  v.  Brewers'  Company,  I  Met. 
498;  Mathew  v.  Brise,  14  Beav.  341. 

If  the  claim  to  the  rents  rest  upon  a  legal  title,  the  plaintifiF  has  then  a  legal  re- 
medy, and  cannot  come  into  a  court  of  equity  at  all ;  Jesus  College  v.  Bloom,  3 
Atk.  262;  and  see  Dinwiddle  v.  Bailey,  G  Yes.  136;  Taylor  v.  Crompton,  Bunb. 
95;  Lansdowne  v.  Lausdowne,  1  Mad.  137  ;  except  in  cases  where,  from  the  com- 
plicated nature  of  the  accounts,  or  other  particular  circumstances,  a  court  of  law 
would  afford  very  inadequate  relief;  see  O'Gonner  v  Spaight,  I  Sch.  &  Lef.  309  ; 
Corporation  of  Carlisle  v.  Wilson,  13  Ves.  2T6.  But  an  infant  may  file  a  bill  for 
an  account  upon  a  legal  title  ;  Gardiner  v.  Fell,  I  J.  &  W.  22  ;  Roberdeau  v.  Rous, 
1  Atk.  543  ;  Yallop  v.  Holworthy,  I  Eq.  Ca.  Ab.  7  ;  Newburgh  t.  Bickerstaffe,  I 
Yern.  295;  Curtis  v.  Curtis,  2  B.  C.  C.  631,  per  Cur.;  as  every  person  entering 
upon  an  infant's  lands  is  regarded  in  the  light  of  a  bailiff  or  receiver  for  the  infant ; 
Dormer  v.  Fortescue,  3  Atk.  130,  per  Lord  Hardwicke  ;  Pulteney  v.  W^arren,  6  Yes. 
89,  per  Lord  Eldon ;  Morgan  v.  Morgan,  1  Atk.  489 ;  Lord  Falkland  v.  Bertie,  2 
Yern.  342,  per  Cur. ;  Doe  v.  Keen,  7  T.  R.  390,  per  Lord  Kenyon  ;  Hicks  v.  Sallitt, 
3  De  G.  M.  &  G.  782.  And  the  jurisdiction  against  a  person  entering  during  the 
infant's  minority  remains,  though  the  bill  be  not  filed  until  after  the  infant  attains 
21;  Blomfield  v.  Eyre,  8  Beav.  250;  Hicks  v.  Sallitt,  ubi  supra.  And  generally 
all  persons  may  have  an  account  upon  a  legal  title  in  respect  of  mines,  which  are 
a  species  of  trade;  Bishop  of  Winchester  v.  Knight,  1  P.  W.  406;  and  see  Pul- 
teney v.  Warren,  6  Yes.  89;  Lansdowne  v.  Lansdowne,  1  Mad.  116;  Parrott  v. 
Palmer.  3  M.  &  K.  632;  or  of  tithes,  which  when  severed  are  property  in  trust; 
Collins  v.  Archer,  1  R.  &  M.  284,  &c. ;  but  not  it  seems  of  tiviber,  without  praying 
an  injunction  ;  Jesus  College  v.  Bloom,  3  Atk.  262  ;  and  see  Poulteney  v.  W^arren, 
6  Yes.  89;  University  of  Oxford  v.  Richardson,  lb.  701  ;  Grierson  v.  Eyre,  9  Yes. 
346;  but  see  Garth  v.  Cotton,  1  Dick.  211 ;  Lee  v.  Alston,  1  B.  C.  C.  194. 

Although  where  a  remedy  lies  at  law  an  account  cannot  be  had  in  equity  against 
iht  pernor  of  the  profits  himself,  yet,  perhaps,  after  his  decease,  if  the  action  sur- 
vive at  law  against  the  executor,  the  party  entitled  to  the  profits  may  consider 
himself  a  creditor,  and  file  a  bill  in  equity  for  an  account  of  the  assets.  Mony- 
penny  v.  Bristow,  2  R.  &  M.  117,  (but  the  bill  also  prayed  delivery  of  title  deeds;) 
Gardiner  v.  Fell,  1  J.  &  W.  22,  (but  the  plaintiff  was  also  an  infivnt.) 

Where,  as  in  the  preceding  cases,  a  court  of  equity  assumes  a  concurrent  juris- 
diction with  courts  of  law,  the  account  will  not  be  extended  beyond  the  legal 
limit  of  six  years,  provided  the  statute  be  pleaded,  Lockey  v.  Lockey,  Pr.  Ch.  518  : 
but  if  the  defendant  do  not  avail  himself  of  the  statute  by  demurrer,  plea,  or 
answer  (see  Monypenny  v.  Bristow,  2  R.  &  M.  125,)  or  if  the  plaintiff  be  an  infant 
who  is  exempted  from  the  Statute  of  Limitations,  Hicks  v.  Sallitt,  3  De  G.  M.  &  G. 
782,  the  account  will  be  granted  in  equity,  as  at  law  from  the  time  the  title  ac- 
crued. 

It  often  happens  that  a  legal  remedy  did  exist,  but  has  since,  by  the  death  of  a 
party,  or  the  determination  of  the  estate,  become  extinguished.  In  such  a  case, 
as  the  right  was  not,  but  only  is,  without  a  remedy  at  law,  there  seems  no  ground 
in  general  for  the  interference  of  a  court  of  equity.  Barnwall  v.  Barn  wall,  3  Ridg. 
P.  C.  71,  per  Lord  Fitzgibbon  ;  Hutton  v.  Simpson,  2  Yern.  722  ;  Norton  v.  Frecker, 
1  Atk.  525,  526,  per  Lord  Hardwicke  ;  and  see  Pulteney  v.  Warren,  6  Yes.  88. 

But  if  the  remedy  was  lost  through  mistake,  the  court  upon  that  principle  will 
interpose:  as  where  a  lease  was  held  for  the  lives  of  A.  and  his  two  daughters  B. 
and  C,  and  A.  afterwards  married  again,  and  had  another  daughter,  who  was  also 
named  B.,  and  the  landlord  on  the  expiration  of  the  lease  by  the  death  of  the  real 
cestui  que  vie,  did  not  enter,  B.  the  daughter  by  the  second  marriage  being  mistaken 
for  B.  the  life  named  in  the  lease.  Lord  Macclesfield  said,  "  Where  one  has  title  of 
entry,  and  neglects  to  enter  or  to  bring  his  ejectment,  but  sleeps  upon  it  for  several 


598 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


ceshii  que  trust  may  attach  and  follow,  so  long  as  it  can  be  traced,  the 
property  that  has  been  substituted  in  the  place  of  the  trust  estate. 

years  as  he  has  no  remedy  at  law  for  the  mesne  profits,  so  neither  has  he  in  equity,  for 
it  was  his  own  fault  he  did  not  enter,  and  he  shall  never  come  into  a  court  of  equity 
for  relief  against  his  own  negligence,  or  to  make  the  tenant  in  possession  who  held 
over  his  lease  to  be  but  his  bailifi"  or  steward,  whether  he  will  or  not;  but  in  the 
present  case,  by  reason  of  the  circumstance  of  both  daughters  being  of  the  same  name, 
and  the  mistake  consequent  thereon,  the  defendant  must  account  for  the  mesne  profits 
from  the  expiration  of  the  lease."  Duke  of  Bolton  v.  Deane,  Pr.  Ch.  516.  (Note, 
in  this  case  Lord  Hardwicke  thought  a  remedy  still  existed  at  law.  Dormer  v.  For- 
tescue  Ridg.  Rep.  t.  Hardwicke  :  but  Lord  Macclesfield  was  evidently  of  a  different 
opinion,  and' so  was  Lord  Fitzgibbon.     Barnwall  v.  Barnwall,  3  Ridg.  P.  C.  G8.) 

So  equity  will  relieve  where  the  remedy  was  prevented  hj  fraud:  as  where  A. 
was  entitled  to  a  leasehold  estate,  but  B.,  concealing  the  deeds,  remained  in  pos- 
session until  the  term  had  expired,  Lord  King  directed  an  account  of  the  rents  and 
profits  from  the  time  that  A.'s  title  accrued,  on  the  ground  that  A.  had  been  kept 
in  ignorance  of  his  just  rights  through  B.'s  fraudulent  concealment  of  the  deed 
and  counterpart.  Bennet  v.  Whitehead,  2  P.  W.  644 ;  and  see  Duke  of  Bolton  v. 
Deane,  Pr.  Ch.  516,  and  Barnwall  v.  Barnwall,  3  Ridg.  P.  C.  66. 

And  generally  the  court  will  in  all  cases  lend  its  aid  where  the  legal  process  has 
been  lost,  not  by  any  delay  on  the  part  of  the  plaintiff,  but  through  some  default 
of  the  defendant.     Pulteney  v.  Warren,  6  Ves.  73. 

IL  An  account  may  be  sought  as  incident  or  collateral  to  the  relief.  The  doc- 
trines upon  this  subject  have  been  very  distinctly  laid  down  by  Lord  Fitzgibbon, 
afterwards  Lord  Clare,  in  Barnwall  v.  Barnwall,  3  Ridg.  P.  C.  66. 

1.  "The  general  rule  of  equity,"  he  said,  "is,  that  if  the  suit  for  recovery  of 
possession  be  properly  cognizable  in  a  court  of  equity,  and  the  plaintiff  obtain 
a  decree,  the  court  will  direct  an  account  of  rents  and  profits,  as  incident  to  such 
relief." 

This  rule  has  been  treated  of  in  the  text,  and  requires  no  further  observation. 

2.  "  If  a  man  have  a  mere  legal  title  to  the  possession,  he  has  no  right  to  come 
into  equity  for  the  recovery  of  it;  and  if  he  has  originally  recovered  the  posses- 
sion at  law,  he  has  no  manner  of  right  to  proceed  by  bill  for  an  account  of  rents 
and  profits:  as  his  title  to  the  possession  was  at  law,  he  must  proceed  for  the 
whole  there."  See  also  Dormer  v.  Fortescue,  3  Atk.  130  ;  Tilly  v.  Bridges,  Pr. 
Ch.  252 ;  Owen  v.  Aprice,  1  Ch.  Re.  32  ;  Anon,  case,  1  Vern.  105,  contradicted  3 
Atk.  129. 

Upon  this  rule  it  must  be  remarked,  that  a  dotvress,  (Mundy  v.  Mundy,  2  Ves. 
jun.  122  ;  D'Arcy  v.  Blake,  2  Sch.  &  Lef.  387  ;  Wild  v.  Wells,  1  Dick.  3  ;  Meggot 
V.  Meggot,  2  Id.  794;  Goodenough  v.  Goodenough.  2  Id.  795;  Curtis  v.  Curtis,  2 
B.  C.  C.  620  ;  Moor  v.  Black,  Rep.  t.  Talbot,  126;  and  see  Dormer  v.  Fortescue, 
3  Atk.  130;  Poulteney  v.  Warren,  6  Ves.  89 ;  Agar  v.  Fairfax,  17  Ves.  552  ;)  and 
infant  (see  Dormer  v.  Fortescue,  3  Atk.  130,  134 ;  S.  C.  Ridg.  Rep.  t.  Hardwicke, 
183,  191 ;  Pulteney  v.  Warren,  6  Ves.  89;  Newburgh  v.  Bickerstafife,  1  Vern.  295  ;) 
are  allowed  to  proceed  in  equity  upon  their  legal  title,  and  incidentally  to  the  relief 
will  be  decreed  an  account  of  the  mesne  rents  and  profits.  But  by  3  &  4  W.  4,  c. 
27,  s.  41,  the  arrears  of  dower  are  recoverable  for  six  years  only  next  preceding 
the  commencement  of  the  suit.  And  the  account  of  an  infant  will  be  barred,  if 
he  do  not  bring  his  bill  within  six  years  after  he  has  attained  his  majority.  Lockey 
V.  Lockey,  Pr.  Ch.  518. 

3.  "  If  a  party  be  obliged  to  come  into  a  court  of  equity  for  aid  to  enable  him 
to  prosecute  his  title  at  law,"  (as  where  he  cannot  recover  in  a  legal  action  by 
reason  of  an  outstanding  term,  or  because  the  title  deeds  to  the  estate  are  in  the 
hands  of  the  defendent,)  "after  possession  recovered  at  law,  there  may  be  cases 
in  which  he  may  come  back  for  an  account  of  rents  and  profits  in  the  suit  depend- 
ing in  equity."  And  see  Dormer  v.  Fortescue,  3  Atk.  124;  S.  C.  Ridg.  Rep.  t. 
Hardwicke,  176;  Reade  v.  Reade,  5  Ves.  744.  Or  the  plaintiff  being  obliged  to 
resort  to  equity  on  one  ground,  may,  to  prevent  circuity,  ask  complete  relief  in  the 
first  instance  in  that  court ;  and  if  his  title  be  established,  either  by  the  deter- 
mination of  the  court  itself,  or  by  an  issue  directed  at  law,  an  account  of  the 
rents  and  profits  will  be  consequential  upon  the  relief.  Townsend  v.  Ash,  3  Atk. 
336;  Edwards  v.  Morgan,  M'Clel.  541  ;  Reynolds  v.  Jones,  2  Sim.  &  Stu.  206. 


REMEDIES    OF    THE    CESTUI    QUE    TRUST.  599 

It  seems  never  to  liave  been  doubted,  thatwbere  the  *conver-  p^-r  ,-, 
sion  was  in  pursuance  of  the  trust,  the  newly  acquired  property  L  J 
would  be  bound  by  the  original  equity  ;(^)  but  in  the  leading  case  of 
Taylor  v.  Plumer,(m)  it  was  ^contended,  that  where  the  eonver-  |-^_._ 
sion  was  tortious,  then  as  the  estate  purchased  was  not  in  a  form  L  J 
consistent  with  the  trust,  *and  the  cestui  que  trust  would  be  under  r-^^-r  p-, 
no  obligation  to  accept  it  in  lieu  of  the  rightful  property,  the  L  J 
cestui  que  trust  should  come  in  as  a  general  creditor,  and  not  be  permit- 
ted to  assert  a  specific  lien.  But  this  distinction  was  disallowed  by  the 
court,  and  indeed  seems  to  have  been  viewed  as  not  maintainable  in 
the  prior(rt)  as  well  as  in  the  subsequent(o)  cases.  Lord  Ellenborough 
observed,  "  Upon  a  view  of  the  authorities  and  consideration  of  the 
arguments,  it  should  seem,  that,  if  the  property  in  its  original  state  and 
form  was  covered  with  a  trust,  no  change  of  that  form  can  divest  it  of 
such  trust,  or  give  the  trustee,,  or  those  who  represent  him  in  right,  any 
other  more  valid  claim  in  respect  to  it  than  they  respectively  had  before 
such  change.  An  abuse  of  trust  can  confer  no  rights  on  the  party 
abusing  it,  nor  on  those  who  claim  in  *privity  with  him.'Yp)  p^^._-. 
But  where  a  man  borrows  money  for  the  purpose  of  purchasing  an  L  -I 
estate,  and  afterwards  misapplies  a  trust  fund  in  discharge  of  the  debt 
so  contracted,  the  transaction  cannot  be  treated  as  a  purchase  made  with 
the  trust  money.r^'). 

It  was  said  by  Lord  King  that  "  money  had  no  earmark,  insomuch 
that  if  a  receiver  of  rents  should  lay  out  all  the  money  in  the  purchase 

(Z)  Burdett  v.  Willet,  2  Vern.  638  ;  Ryall  v.  Rolle,  1  Atk.  172  ;  Ex  parte  Cliion, 
3  P.  W.  187,  note  (A) ;  Waite  v.  Whorwood,  2  Atk.  159;  Ex  parte  Sayers,  5  Ves. 
169 ;  Anon,  case,  Sel.  Ch.  Ca.  57. 

(to)  3  Maul.  &  Sel.  562. 

(n)  Whitecomb  v.  Jacob,  1  Salk.  160  ;  Lane  v.  Dighton,  Amb.  409  ;  Ryal  v.  Ryal, 
lb.  413;  Balgney  v.  Hamilton,  lb.  414;  Wilson  v.  Foreman,  2  Dick.  593,  is  mis- 
reported:  see  Lench  V.  Lench,  10  Ves.  519. 

(0)  Lord  Chedworth  v.  Edwards,  8  Ves.  46;  Greatley  v.  Noble,  3  Mad.  79; 
Buckeridge  v.  Glasse,  Cr.  &  Ph.  126;  Murray  v.  Pinkett,  12  CI.  &  Fin.  784; 
Sheridan  v.  Joyce,  1  Jones  &  Lat.  401  ;  Trench  v.  Harrison,  17  Sim.  Ill;  Mayor 
of  Berwick  v.  Murray,  3  Jur.  N.  S.  1 ;  Harford  v.  Lloyd,  20  Beav.  310. 

(/j)  Taylor  v.  Plumer,  3  M.  &  S.  574.  {q)  Denton  v.  Davies,  18  Ves.  499. 

In  these  cases  the  account  will  clearly  be  restricted  to  the  period  of  six  years ; 
for  the  plaintiff  recovers  upon  a  legal  title,  and  the  circumstance  of  his  being 
obliged  to  sue  in  equity  does  not  alter  the  nature  of  the  action  for  inesne  rents  and 
profits.  See  Reade  v.  Reade,  5  Ves.  749,  750;  Harmood  v.  Oglander,  6  Ves.  215; 
Drummond  v.  Duke  of  St.  Albans,  5  Ves.  439  ;  Hercy  v.  Ballard,  4  B.  C.  C.  468  ; 
Stackhouse  v.  Barnston,  10  Ves.  470;  Monypenny  v.  Bristow,  2  R.  &  M.  125;  and 
see  Reynolds  y.  Jones,  2  Sim.  &  Stu.  206.  In  a  late  case,  Thomas  v.  Thomas,  2 
K.  &  J.  70,  Vice-Chancellor  Wood  considered  the  rule  to  be,  to  give  the  account 
from  the  filing  of  the  bill  only. 

But  if  the  plaintiff"  has  been  kept  out  of  the  estate  by  the  fraud,  misrepresenta- 
lion,  or  concealment  of  the  defendant,  the  court  will  suppose  that,  had  the  plaintiff" 
known  his  just  rights,  he  would  have  commenced  his  action  at  law  on  the  first 
accruer  of  his  title,  and  will  then  decree  an  account  of  the  mesne  rents  and  profits 
against  the  defendant  from  that  period.  Dormer  v.  Fortescue,  Ridg.  Rep.  t.  Hard- 
wicke,  184,  185  ;  S.  0.  3  Atk.  130. 

On  the  other  hand,  if  the  plaintiff"  be  in  fault,  as,  if  he  be  guilty  of  laches,  the 
account  will  be  restricted  to  the  time  of  filing  the  bill.  Edwards  v.  Morgan, 
M'Clel.  541,  see  557. 


600  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

of  land   or  if  an  executor  should  realize  all  his  testator's  estate,  and  after- 
wards die  insolvent,  yet  a  court  of  equity  could  not  charge  or  follow  the 
land  ;"{)•)  and  bank-notes  and  ncffotiahle  bills  have  been  represented  as 
possessing  the  same  quality.     But  the  notion  seems  to  have  originated 
from  souae  misconception,  and  cannot  be  supported.     «  'Tis  pity/'  said 
Lord  Mansfield,  <'  that  reporters  sometimes  catch  at  quaint  expressions 
that  may  happen  to  be  dropped  at  the  bar  or  bench,  and  mistake  their 
meanino-.     It  has  been  quaintly  said  that  the  reason  why  money  cannot 
be  followed  is  because  it  has  no  earmark,  but  this  is  not  true.     The  true 
reason  is  upon  account  of  the  currency  of  it — it  cannot  be  recovered  after 
it  has  passed  in  currency.     Thus,  in  the  case  of  money  stolen,  the  true 
owner  cannot  recover  it  after  it  has  been  paid  away  fairly  and  honestly 
upon  a  valuable  and  bona  fide  consideration ;  but  before  the  money  has 
passed  in   currency  an   action   may   be   brought   for  the  money  itself. 
Apply  this  to  the  case  of  a  bank-note — an  action  may  lie  against  the 
finder,  it  is  true,  but  not  after  it  has  been  paid  away  in  currency.     A 
bank-note  is  constantly  and  universally,  both  at  home  and  abroad,  treated 
as  money,  as  cash,  and  paid  and  received  as  cash,  and  it  is  necessary  for 
the  purposes  of  commerce,  that  their  currency  should  be  established  and 
secured.     No  dispute  ought  to  be  made  with  the  bearer  of  a  cash-note,  in 
regard  to  commerce  and  for  the  sake  of  the  credit  of  these  notes. "(s)    And 
r-!.-rr,-i  Lord  Ellenboroush  observed,  «  The  product  *of  or  substitute  for 
L         -1  the  original  thing  still  follows  the  nature  of  the  thing  itself  as  long 
as  it  can  be  ascertained  to  be  such,  and  the  right  only  ceases  when  the  means 
of  ascertainment  fjxil,  which  is  the  case  when  the  subject  is  turned  into 
money,  and  mixed  and  confounded  in  a  general  mass  of  the  same  description. 
The  difficulty  which  arises  in  such  a  case  is  a  difficulty  oifact  and  not  of 
law,  and  the  dictum  that  money  lias  no  earmark  must  be  understood  in 
the  same  way,  ^.  e.,  as  predicated  only  of  an  undivided  and  undistinguish- 
able  mass  of  current  money  ;  but  money  kept  in  a  bag,  or  otherwise  kept 
apart  from  other  money,  guineas,  or  other  coin  marked  (if  the  fact  were 
so)  for  the  purpose  of  being  distinguished,  are  so  far  earmarked  as  to  fall 
within  the  rule  which  applies  to  every  other  description  of  personal  pro- 
perty, whilst  it  remains  in  the  hands  of  the  factor  or  his  general  legal 
representatives. "(/)     The  only  distinction,  then,  between  money,  notes, 
and  bills,  and  other  chattels,  appears  to  be  this — that  the  former,  for  the 
protection  of  commerce,  cannot  be  pursued  into  the  hands  of  a  bona  fide 
holder,  to  whom  they  have   passed  in  circulation,  whilst  other  chattels 
can  be  recovered  even  from  a  purchaser  for  valuable  consideration,  pro- 
vided he  did  not  buy  them  in  market  overt.     3Ioney,(i<)  notes, (<;)  and 
bills,(?c)  may  be  followed  by  the  rightful  owner,  where  they  have  not 

(r)  Deg  V.  Deg,  2  P.  "W.  414 ;  and  so  his  lordship  seems  to  have  decided  in  Cox 
V.  Bateman,  2  Ves.  19  ;  and  see  Waite  v.  Whorwood,  2  Atk.  159;  Whitecomb  v. 
Jacob,  1  Salk.  160. 

(«)  Miller  v.  Race,  1  Burr.  457,  459.         {t)  Taylor  v.  Plumer,  3  M.  &  S.  575. 

(m)  See  Taylor  v.  Plumer,  3  M.  &  S.  575  ;  Miller  v.  Race,  1  Burr.  457  ;  Howard 
V.  Jemmet,  3  Burr.  1369;  King  t.  Egginton,  1  T.R.  370;  Ryall  v.  Rolle,  1  Atk.  172. 

(«)  Anon,  case,  1  Salk.  126  ;  S.  G.  1  Raym.  738  ;  Miller  v.  Race,  1  Burr.  457  ; 
Taylor  v.  Plumer,  3  M.  &  S.  562. 

(w)  Bennet  v.  Mayhew,  cited  Pulteney  v.  Darlington,  1  B.  C.  C.  232,  and  Cator 


REMEDIES    OF    THE    CESTUI    QUE    TRUST.  GOl 

been  circuU^ted  or  negotiated,  or  the  person  to  whom  they  so  passed  had 
express  notice  of  the  trust. (.x)  And  the  only  difference  to  be  taken 
between  money  and  notes,  on  the  one  hand,  and  bills  on  the  other,  is  that 
money  is  not  earmarked,  and  therefore  cannot  be  traced  except  under 
particular  circumstances,  but  notes  and  bills,  from  carrying  a  number  or 
date,  can  in  general  be  identified  by  the  owner  without  difficulty.(y) 
*We  may  here  put  the  case  of  trust  money  mixed  in  the  same 


heap  with  the  trustee's  money.     It  may  be  said  that  the  trust 


[*759] 


money  has,  like  water,  run  into  the  general  mass,  and  become  amalga- 
mated, and  therefore  the  cestui  que  trust  has  no  lien.  But  clearly  this 
cannot  be  maintained,  for  suppose  a  trustee,  partly  with  his  own  money 
and  partly  out  of  the  trust  fund,  to  have  purchased  an  estate.  It  cannot 
be  predicated  of  any  particular  part  of  the  estate,  that  it  was  purchased 
with  the  cestui  s  que  trust  money,  and  yet  the  cestui  que  trust  has  a  lien 
upon  the  whole  for  the  amount  that  was  misemployed. (2;)  And  it  follows 
in  the  other  case,  that  though  the  identical  pieces  of  coin  cannot  be  ascer- 
tained, yet,  as  there  is  so  much  belonging  to  the  trust  in  the  general 
heap,  the  cestui  que  trust  is  entitled  to  take  so  much  out. 

The  doctrine  of  following  trust  money  was  carried  to  a  great  length  in 
Ex  parte  Sayers  :(a) — A.  who  resided  in  Dominica,  wrote  to  his  agents 
in  London  to  procure  and  send  him  half-joes  and  dollars,  directing  them 
to  send  to  the  amount  of  6000^.  at  one  time,  5000Z.  at  another,  and  5000?. 
every  succeeding  opportunity ;  and  remitted  two  bills  of  10,000?.  and 
6000?.  to  be  placed  to  his  credit.  The  agents  discounted  the  bills,  and 
remitted  5600?.  to  Peter  and  Co.,  at  Lisbon,  with  directions  to  purchase 
joes,  and,  if  they  could  not  procure  them,  to  return  the  money  in  good 
bills.  Another  remittance  was  afterwards  made,  to  the  same  amount, 
with  similar  directions.  The  answer  from  Lisbon  was,  that  joes  could 
not  be  procured,  and  soon  afterwards  good  bills  were  sent  to  near  the 
amount  of  the  remittance.  In  the  intei'val  the  London  agents  had  become 
bankrupts,  and  the  bills  got  into  the  hands  of  the  assignees.  A.  peti- 
tioned for  the  bills  as  his  specific  property,  and  Lord  Loughborough  made 
the  order,  observing,  "  It  is  admitted,  very  properly,  that  if  joes  had  been 
returned,  the  petitioner  would  have  a  right  to  them,  as  purchased  by  his 
order  with  money  remitted  by  him  for  that  purpose,  and  it  would  be  a 
narrow  rule  to  hold,  that,  the  commission  being  in  train  to  be  executed, 
the  property  being  separated  and  severed  ^property,  by  the  acci-  ^^^^„^ 
dent  that  the  joes  were  not  bought,  should  be  lost  to  the  owner.  L  J 
If  the  money  got  into  the  general  fund,  it  got  out  again." 

Upon  a  similar  principle,  if  an  executor  of  a  deceased  partner  continue 
the  testator's  capital  in  the  trade,  though  the  capital  may  consist  only 
of  the  stock  and  debts  of  the  partnership,  and  these  may  undergo  a  con- 
tinual course  of  change  and  fluctuation,  yet  the  court  follows   the  trust 

V.  Earl  of  Pembroke,  2  B.  C.  C.  287  ;  and  see  Ex  parte  Sayers,  5  Yes.  169;  Lord 
Chedworth  v.  Edwards,  8  Ves.  46;  Ryall  v.  Rolle,  1  Atk. 'l72  ;  Raphael  v.  Bank 
of  England,  17  Com.  Bench  Re.  161. 

(x)  Verney  v.  Carding,  cited  Joy  v.  Campbell,  1  Sch.  &  Lef.  345. 

{y)  See  Ford  v.  Hopkins,  1  Salk.  283. 

(z)  Lane  v.  Dighton,  Arab.  409;  Lewis  v.  Madocks,  17  Ves.  57,  58;  Price  v. 
Blakemore,  6  Beav.  507.  (a)  5  Ves.  169. 


602  LEAVIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

capital  throughout  all  its  ramifications,  and  gives  to  the  beneficiaries  of 
the  deceased  partner's  estate  the  fruits  derived  from  that  capital  so  con- 
tinually altered  and  changed. (6) 

And  so  if  a  trustee  pay  trust-money  into  a  bank  to  a  simple  account 
with  himself,  not  in  any  way  earmarked  with  the  trust,  and  also  keep 
private  moneys  of  his  own  to  the  same  account,  the  court  will  disentangle 
the  account,  and  separate  the  trust  from  the  private  moneys,  and  award 
the  former  specifically  to  the  cestui  que  trust.{c)  Lord  Justice  Knight 
Bruce  observed,(c?)  ''  Let  me  suppose  that  the  very  coins  and  the  very 
notes  received  by  the  trustee  on  account  of  the  trust,  had  been  placed  by 
him  together  in  a  particular  repository,  such  as  a  chest,  mixed  confusedly 
together  as  among  themselves,  but  in  a  state  of  clear  and  distinct  sepa- 
ration from  every  thing  else,  and  that  they  had  so  remained  at  his  death, 
it  is,  I  apprehend,  certain  that  after  his  death,  the  coins  and  notes  thus 
circumstanced  would  not  have  formed  part  of  his  general  assets,  but  would 
have  been  specifically  applicable  to  the  purposes  of  the  trust.  Suppose 
this  case  to  be  varied  by  the  fact  that  in  the  same  chest  with  these  coins 
and  notes  the  trustee  had  placed  money  of  his  own  of  a  known  amount, 
had  never  taken  it  out  again,  but  had  so  mixed  and  blended  it  with  the 
rest  of  the  contents  of  the  chest,  that  the  particular  coins  or  notes  of 
which  this  money  of  his  own  consisted  could  not  be  identified.  What 
difi'erence  would  that  make  ?  None,  as  I  apprehend,  except — if  it  be  an 
exception — that  his  executors  would  possibly  be  entitled  to  receive  from 
the  contents  of  the  repository  an  amount  equal  to  the  ascertained  amount 
r^'zn  T  ^^  ^'^^  money  in  every  sense  *his  own,  so  mixed  by  himself  with 
L  -I  the  other  money ;  but  not  in  either  case,  as  I  conceive,  would 
the  blending  together  of  the  trust-moneys,  however  confusedly,  be  of  any 
moment  as  between  the  various  cestuis  que  trust  on  the  one  hand,  and 
the  executors  as  representing  the  general  creditors  on  the  other.  Ldt  it 
be  imagined  that  in  the  second  case  supposed,  the  trustee  after  mixing 
the  known  amount  of  money  of  his  own  with  the  trust-moneys,  had  taken 
from  the  repository  a  sum  for  his  own  private  purposes,  and  it  could  not 
be  ascertained  whether  in  fact  the  specific  coins  and  notes  forming  it 
included  or  consisted  of  those  or  any  of  those  which  were  in  every  sense 
his  own  specifically,  what  would  be  the  consequence  ?  I  apprehend  that 
in  equity,  at  least,  if  not  at  law  also,  what  he  so  took  would  be  solely  or 
primarily  ascribed  to  those  contents  of  the  repository  which  were  in  evei*y 
sense  his  own ;  he  would,  in  the  absence  of  evidence  that  he  intended 
a  wrong,  be  deemed  to  have  intended  and  done  what  was  right ;  and  if 
the  act  could  not  in  that  way  be  wholly  justified,  it  would  be  deemed  to 
have  been  just  to  the  utmost  amount  possible."  And  having  laid  down 
these  principles,  the  lord  justice  proceeded  :  "  When  a  trustee  pays  trust- 
money  into  a  bank  to  his  credit,  the  account  being  a  simple  account  of 
himself  not  marked  or  distinguished  in  any  other  manner,  the  debt  thus 
constituted  from  the  bank  to  him,  is  one  which  as  long  as  it  remains  due 
belongs  specifically  to  the  trust,  as  much  and  as  efi'ectually  as  the  money 
so  paid  would  have  done  had  it  been  specifically  placed  by  the  trustees 

(6)  See  Pennell  v.  Deffell,  4  De  G.  M.  &  G.  389:  and  see  pp.  319  &  321,  supra, 
(c)  Pennell  v.  Deffell,  4  De  G.  M.  &  G.  3T2.        '  (d)  lb.  p.  381. 


REMEDIES    OF    THE    CESTUI    QUE    TRUST.  603 

ia  a  particular  repository  and  so  remained ;  that  is  to  say,  if  the  specific 
debt  shall  be  claimed  on  behalf  of  the  ccstuis  que  trust,  it  must  be  deemed 
specifically  theirs  as  between  the  trustee  and  his  executors  and  the  general 
creditors  after  his  death  on  the  one  hand,  and  the  trust  on  the  other. 
Whether  the  cestuis  que  trust  are  bound  to  take  to  the  debt,  whether  the 
deposit  was  a  breach  of  trust,  is  a  difi"erent  question.  This  state  of  things 
would  not,  I  apprehend,  be  varied  by  the  circumstance  of  the  bank  hold- 
ing also  for  the  trustee,  or  owing  also  to  him  money  in  every  sense  his 
own."  For  the  mode  in  which  the  court  dealt  with  the  subsequent  items 
on  the  debit  and  credit  side  of  such  an  account,  the  reader  is  referred  to 
the  case  itself. 

*In  tracing  money  into  land,  the  principal  difiiculty  has  arisen  r^-rpo-i 
from  the  Statute  of  Frauds, (c)  the  seventh  section  enacting  that  L  "J 
all  declarations  of  trusts  of  lands  shall  be  manifested  and  proved  by  some 
writing.  It  was  formerly  held  that  parol  evidence,  to  prove  a  state  of 
circumstances  from  which  a  court  of  equity  would  elicit  a  constructive 
trust,  was  inadmissible ;(/)  but  Lord  Hardwicke,  on  the  ground  that 
constructive  trusts  were  excepted  out  of  the  Statute  of  Frauds(^)  ruled 
that  parol  evidence  might  be  given  ;(/t)  and  Sir  T.  Clarke,  in  the  leading 
case  of  Lane  v.  Dightou,(/)  (though,  had  the  point  been  res  Integra,  he 
should  have  thought  the  evidence  not  admissible  within  the  statute,)  yet 
followed  the  authority  of  Lord  Hardwicke  ;  and  Sir  "\V.  Grant  has  since 
declared  that,  whatever  doubts  might  formerly  have  been  entertained 
upon  the  subject,  the  law  is  now  settled. (A-) 

If  a  trustee  be  under  an  obligation  to  lay  out  money  on  land,  and  purchase 
an  estate  at  a  price  corresponding  with  the  sum  to  be  invested,  the  court 
independently  of  positive  evidence,  may  presume  the  trust  money  to  have 
been  so  applied. (i?)  But  no  such  presumption  can  be  raised  where  it  can  be 
shown  that  the  trustee,  though  under  such  an  obligation,  was  mistaken  in 
the  nature  of  the  trust,  and  acted  under  a  different  impression. (m)  And 
where  a  tenant  for  life  with  power  to  sell  and  invest  in  the  purchase  of 
other  land,  purchased  lands  with  borrowed  moneys,  and  many  years  after- 
wards sold  the  settled  estates,  and  applied  the  purchase-money  partly  in 
discharge  of  the  debts  thus  contracted  by  him,  it  was  held  that  the  pur- 
chased lands  could  not  be  treated  as  liable  to  the  trusts  of  the  settled 
estates.(«) 

In  Lewis  v.  Madocks,(o)  no  evidence  to  connect  any  particular  fund 
with  the  estate  was  necessary,  for  a  person  having  covenanted  on  his 
marriage  to  settle  all  the  personalty  he  *should  acquire  upon  cer-  [-^ygQ-i 
tain  trusts,  and  having  afterwards  invested  parts  of  his  personalty  L  J 
on  land,  it  was  clear  that  the  money  expended  upon  the  estate  was  bound 
by  the  trust,  and  could  therefore  be  followed  into  the  purchase. 

(e)  29  Car.  2,  c.  3.  (/)  See  supra,  Ch.  VIII.  s.  2,  p.  204. 

(ff)  By  the  8th  section. 

(A)  Ryal  v.  Ryal,  Amb.  413;  and  see  Anon,  case,  Sel.  Ch.  Ca.  57. 

(0  Arab.  409.  (k)  Lench  v.  Lench,  10  Ves.  517. 

(I)  See  iVnon.  case,  Sel.  Ch.  Ca.  57;  Price  v.  Blakemore,  6  Bcav.  507  :  Matthias 

Matthias,  3  Jur.  N.  S.  429. 


(wi)  Perry  v.  Philips,  4  Ves.  108,  see  116,  117. 

(«)  Denton  v.  Davies,  18  Ves.  499.  (o)  8  Ves.  150 ;  S. 


C.  17  Ves.  48. 


G04 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


Where  a  trust  fund  is  traced  into  land,  and  the  fund  constitutes  a  part 
only  of  the  money  laid  out  in  the  purchase,  the  court  has  usually  given 
a  lien  merely  on  the  land  for  the  trust  money  and  interest  ;(i>)  but  where 
the  entire  land  is  clearly  the  fruit  of  the  trust  fund,  the  cestms  que  trust 
must,  upon  principle,  have  a  right  to  take  the  land  itself,  whether  the 
purchase  be  or  not  of  a  description  authorized  by  the  trust.(2) 


SECTION  III. 

OF   THE   REMEDY    FOR    A   BREACH    OF   TRUST    AGAINST    THE   TRUSTEE 

PERSONALLY. 

In  the  event  of  a  breach  of  trust,  the  cestui  que  trust  is  entitled  to  file 
a  bill  against  the  trustee  (a  right  which  is  not  affected  by  the  Statute  of 
Limitat1ons,)(r)  to  compel  from  him  personally  a  compensation  for  the 
loss  the  trust  estate  has  sustained.  The  same  rule  applies  where  a  cor- 
poration is  trustee ;  and  a  corporation,  since  the  Municipal  Corporation 
Act,  is  liable  for  a  breach  of  trust  committed  before  the  act.(s) 

If  the  trustee  dispose  of  the  trust  estate  to  a  purchaser  for  valuable 
consideration  without  notice,  the  cestui  que  trust  may  compel  the  trustee 
to  purchase  other  lands  of  equal  A'alue  to  be  ^settled  upon  the 
[*764]  j.j^^  trust,((;)  or  the  cestiii  que  trust  may  at  his  option  take  the 
proceeds  of  the  sale,  with  interest,  or  the  present  estimated  value  of  the 
lands  sold,  after  deducting  any  increase  of  price  caused  by  subsequent 
improvements. («) 

So  where  a  testator  gave  a  legacy  of  1200/.,  and  directed  the  executor 
to  invest  it  in  the  funds,  and  the  estate  was  wound  up,  but  the  executor 
neglected  to  invest,  and  the  price  of  stock  rose  ;  it  was  held,  that  retainer 
by  the  executor,  after  accounting  for  the  residuary  estate,  was  equivalent 
to  payment  to  a  trustee;  that  if  the  cestui  que  trust  sustained  a  loss  by 
the  trustee  neglecting  his  duty,  the  cestui  que  trust  had  a  right  to  charge 
the  trustee  with  the  amount  of  the  loss ;  that  the  executor  was  therefore 
bound  to  purchase  so  much  stock  as  the  legacy  would  have  produced  had 
it  been  invested  at  the  proper  period. (c)     And,  in  another  case,  where  a 

(p)  Lane  v.  Dighton,  Arab.  409;  Lewis  v.  Madocks,  8  Ves.  150;  17  Ves.  48, 
see  57  ;  Price  v.  Blakemore,  6  Beav.  507. 

(q)  Trench  v.  Harrison,  17  Sim.  111.  Lord  Manners,  in  Savage  v.  Carroll,  1 
B.  &  B.  265,  see  284,  seems  to  have  thought  otherwise ;  but  this  was  before  Tay- 
lor V.  Plumer. 

(?•)  Phillipo  V.  Munnings,  2  M.  &  C.  309 ;  Milnes  v.  Cowley,  4  Price,  103;  Cator 
V.  Croydon  Railway  Company,  4  Y.  &  C.  405. 

(s)  Attorney-General  v.  Corporation  of  Leicester,  9  Beav.  546.  A  solicitor  who 
wilfully  advises  a  breach  of  trust,  is  liable  to  be  struck  off  the  roll ;  Goodwin  v. 
Gosnell,  2  Coll.  457,  see  p.  462.  And  so  a  fortiori  a  solicitor,  who,  being  a  trustee 
himself,  commits  a  wilful  breach  of  trust ;  In  re  Chandler,  2  Jur.  N.  S.  366;  In  re 
Hall,  2  Jur.  N.  S.  633. 

(t)  See  Mansell  v.  Mansell,  2  P.  W.  681  ;  Vernon  v.  Vaudry,  Barn.  303. 

[u)  See  Attorney-General  v.  East  Retford,  2  M.  &  K.  35 ;  but  see  Denton  v. 
Davies,  18  Ves.  504. 

{v)  Byrchall  v.  Bradford,  6  Mad.  13  ;  S.  C.  Id.  235  :  and  see  Pride  v.  Fooks,  2 
Beav.  430. 


REMEDIES    OF    THE    CESTUI    QUE    TRUST.  605 

testator  bad  directed  an  investment  in  the  funds  and  an  accumulation 
of  the  dividends,  the  trustee  was  decreed  to  purchase  the  sum  of  stock 
which  the  fund,  if  regularly  invested,  would  have  produced,  and  to  make 
good  the  amount  due  in  respect  of  subsequent  accumulation. (lo)  But  if 
the  trustee  have  a  discretion  of  investing  on  guvernment  or  real  securi- 
ties, the  trustee  is  answerable  for  the  money  only  with  interest,  and  not 
in  the  alternative  for  the  money  with  interest  on  the  stock  with  dividends 
at  the  option  of  the  cestui  que  trust. (x^ 

So  if  a  trustee  suffer  a  policy  of  insurance  to  become  forfeited  through 
neglect  to  pay  the  premiums,  he  is  bound  to  make  compensation  to  the 
cestui  que  tr^ist  for  the  consequential  damage  to  the  estate  ;(^)  that  is,  if 
he  have  funds  in  hand  for  payment  of  the  premiums  ;  but  if  he  have 
none  and  can  procure  none,  he  would  be  exempt  from  liability.  He  may, 
however,  either  advance  money  himself,  or  borrow  it  from  another  on 
the  security  of  the  policy,  and  the  lien  on  the  policy  will  be  allowed. Tz) 
So  if  a  settlement  contain  a  covenant  for  the  ^transfer  of  stock  pj^-rpr-i 
and  the  trustees  neglect  to  enforce  the  ti'ansfer,  they  are  liable  L  J 
for  all  the  consequences. (a) 

If  a  trustee  has  assumed  to  act  as  trustee  and  received  money  in  that 
character,  he  is  accountable  for  the  proceeds  to  the  cestui  que  trust,  and 
cannot  defend  himself  by  showing  that  in  fact  he  was  not  legally  a  trus- 
tee.(i) 

If  a  bill  be  filed  fcft*  an  account  with  an  allegation  of  wilful  default 
and  a  prayer  for  consequential  relief,  and  the  common  accounts  only  are 
directed,  it  is  too  late  to  ask  relief  on  further  directions  against  any 
wilful  act  that  has  transpired  accidentally  from  the  other  inquiries,  (c) 

If  the  trustee  himself  be  dead,  the  bill  may  be  filed  against  the  repre- 
sentative ;  and  an  executor  or  administrator  will  be  answerable  for  the 
damage,  though  he  may  have  distributed  the  assets  amongst  the  legatees 
or  next  of  kin,  without  previous  notice  of  the  breach  of  trust  (except  it 
was  done  under  the  sanction  of  the  court,(fZ)  or  the  cestui  que  trust  may 
recover  the  assets  from  the  legatees  or  next  of  kin  amongst  whom  they 
have  been  distributed. (e) 

But  the  claim  of  the  cestui  que  trust  is  a  simple  contract  debt  only, 
and  therefore,  until  the  late  act,  making  all  a  person's  real  and  personal 
estate  liable  to  his  simple  contract  debts,  it  was  recoverable  not  from  the 
real  but  only  from  the  personal  estate.  However,  if  the  trustee  signs 
the  trust  deed  and  engages  under  his  hand  and  seal  by  words  that  would 

{w)  Pride  v.  Fooks,  2  Beav.  430.  {x)  See  ante,  pp.  355,  356. 

[y)  Marriott  v.  Kinnersley,  Taml.  470. 

{z)  Clack  V.  Holland,  19  Beav.  273,  276,  per  Cur. 

[a)  Fenwick  v.  Greenwell,  10  Beav.  412. 

{b)  Rackham  v.  Siddall,  16  Sim.  297  ;  affirmed  on  appeal  to  the  extent  of  the 
interest  of  the  plaintiff,  the  tenant  for  life  ;  1  Mac.  &  Gor.  607  ;  and  see  Derby- 
shire V.  Home,  3  De  Gex,  Mac.  &  Gor.  80 ;  Hope  v.  Liddell,  21  Beav.  183. 

(c)  Coope  V.  Carter,  2  De  Gex,  Mac.  &  Gor.  292. 

(d)  Knatchbull  v.  Fearnhead,  3  M.  &  C.  122  ;  March  v.  Russell,  3  M.  &  C.  31 ; 
Low  V.  Carter,  1  Beav.  426 ;  Hill  v.  Gomme,  lb.  540  ;  Underwood  v.  Hatton,  5 
Beav.  39. 

(e)  March  v.  Russell,  3  M.  &  Cr.  31  ;  Knatchbull  v.  Fearnhead,  3  M.  &  Cr.  126  j 
Underwood  v.  Hatton,  5  Beav.  38. 

April,  1858.— 39 


606  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

amount  to  a  covenant  at  law,  to  execute  the  trust,  then  the  breach  of 
trust  becomes  a  specialty.  (/) 

In  awardino-  compensation  to  the  cestui  que  trust  against  the  trustee, 
the  court  pays  no  regard  to  the  circumstance  whether  the  trustee  derived 
any  actual  advantage  or  not,  but  proceeds  *upon  the  principle, 
L  J  that  a  trustee,  who  deviates  from  the  line  of  his  duty,  is  under 
an  oblio-ation  to  make  good  the  loss  to  the  cestui  que  trust  :[g)  and  if  a 
trustee  be  guilty  of  misconduct,  and  a  loss  follow,  the  court  does  not 
acquit  him,  because  the  loss  was  more  immediately  caused  by  some  event 
wholly  beyond  the  control  of  the  trustee,  such  as  fire,  lightning,  or  other 
accidcnt.(/i)  "  Although,"  said  Lord  Cottenham,  "  a  personal  represen. 
tative  acting  strictly  within  the  line  of  his  duty,  and  exercising  reason- 
able care  and  diligence,  will  not  be  responsible  for  the  failure  or  depre- 
ciation of  the  fund  in  which  any  part  of  the  estate  may  be  invested,  or 
for  the  insolvency  or  misconduct  of  any  person  who  may  have  possessed 
it,  yet,  if  that  line  of  duty  be  not  strictly  pursued,  and  any  part  of  the 
property  be  invested  by  such  personal  representative  in  funds,  or  upon 
securities,  not  authorized,  or  be  put  within  the  control  of  persons  who 
ought  not  to  be  intrusted  with  it,  and  a  loss  be  thereby  eventually  sus- 
tained, such  personal  representative  will  be  liable  to  make  it  good,  how- 
ever unexpected  the  result,  however  little  likely  to  arise  from  the  course 
adopted,  and  however  free  such  conduct  may  have  been  from  any  impro- 
per motive. "(r)  And  a  trustee  who  has  been  wilTully  the  cause  of  loss 
to  one  trust-fund,  cannot  set  off  against  it  an  improvement  made  in 
another  fund  held  in  trust  for  the  same  parties. (^-^ 

But  a  trustee  will  not  be  charged  with  imaginary  values ;(?)  and,  . 
being  regarded  as  a  mere  stakeholder,  he  will  not  be  liable  for  more  than 
he  has  actually  received, (m)  except  in  cases  of  very  supine  negligence, 
or  wilful  default. (h) 

r*7ft7T  *Where  co-trustees  are  Jointly  implicated  in  a  breach  of  trust, 
L  J  the  cestui  que  trust,  though  he  obtain  a  decree  against  the  trus- 
tees jointly,  may  have  process  of  execution  against  any  one  of  them 
separately  •,(o'\  for  as  regards  the  remedy  of  the  cestui  que  tintst  there  is 
no  primary  liability,  but  each  trustee  is  responsible  for  the  entirety  of 

(/)  See  supra,  pp.  238,  239. 

{g)  See  Dornford  v.  Doruford,  12  Ves.  129;  Raphael  v.  Boehm,  13  Ves.  411  ; 
S.  C.  lb.  490,  491;  Moons  v.  De  Bernales,  1  Russ.  305;  Adair  v.  Shaw,  1  Sch.  & 
Lef.  272  ;  Lord  Montfort  v.  Lord  Cadogan,  17  Ves.  489  ;  Scurfield  v.  Howes,  3  B. 
0.  C.  90,  but  see  Attorney- General  v.  Greenhouse,  1  Bligh,  X.  R.  57-59. 

(A)  See  Caflfrey  v.  Darby,  6  Ves.  496  ;  Cocker  v.  Quayle,  1  R.  &  M.  535  ;  Fyler 
V.  Fyler,  3  Beav.  568 ;  Kellaway  v.  Johnson,  5  Beav.  324;  Munch  v.  Cockerell,  5 
M.  &  Or.  212. 

{i)  Clough  V.  Bond,  3  M.  &  Cr.  496  ;  Gibbins  v.  Taylor,  22  Beav.  344. 

{k)  Wiles  V.  Gresham,  2  Drewry,  258,  see  p.  271. 

[l)  Palmer  v.  Jones,  1  Vern.  144. 

(?«)  Harnard  v.  Webster,  Sel.  Ch.  Ca.  53. 

(n)  Pybus  v.  Smith,  1  Ves.  jun.  193,  per  Lord  Thurlow;  Palmer  v.  Jones,  1 
Vern.  144,  per  Lord  Nottingham. 

(o)  Ex  parte  Shakeshaft,  3  B.  C.  G.  197  ;  Walker  v.  Symonds,  3  Sw.  74,  75  ; 
Attorney-General  v.  Wilson,  1  Cr.  &  Phil.  28,  per  Lord  Cottenham;  and  see  Ex 
parte  Angle,  Barn.  425 ;  but  see  In  re  Chertsey  Market,  6  Price,  278,  279  ;  Taylor 
V.  Tabrum,  6  Sim.  281. 


REMEDIES    OF    THE    CESTUI    QUE    TRUST.  G07 

the  loss  incurred. (jj)  However,  where  a  trustee  had  refused  to  accept 
the  office  unless  another  should  be  named  with  him,  and  the  trust  money 
be  divided  between  them,  so  that  each  might  be  responsible  for  a  moiety 
only,  and  this  was  accordingly  done,  but  the  trust  deed  was  drawn  in 
the  usual  form  as  if  they  were  joint  trustees  of  the  whole  sum,  it  was 
held,  upon  the  insolvency  of  one  of  the  trustees,  that  the  co-trustee 
should  not  be  answerable  for  more  than  the  moiety  paid  to  himself,  the 
division  of  the  trust  money  being  Sir  J.  Leach  observed,  "  a  term  in 
the  creation  of  the  trust."(5')  Where  several  defendants  are  involved  in 
a  breach  of  trust,  the  court  decrees  costs  against  them  jointly  for  the 
plaintiff's  greater  security,  and  does  not  distinguish  between  the  relative 
culpabilities  of  the  defendants. (?•)  But  in  an  analogous  case  where  one 
defendant  was  called  upon  to  pay  all  the  costs,  he  obtained  an  order  in 
the  same  cause  upon  a  motion  (which  however  was  not  opposed)  for  con- 
tribution by  the  other  defendants. (.s) 

A  corporation  filed  a  bill  against  five  of  the  corporators  who  were 
regarded  as  its  agents  and  trustees,  to  make  them  liable  for  the  conse- 
quences of  certain  acts  done  by  them,  with  the  view  of  illegally  aliening 
the  corporation  property,  and  it  was  held  to  be  unnecessary  to  make  all 
the  corporators  parties  who  in  any  way  had  participated  in  the  acts,  for 
the  defendants  were  wrong  doers,  and  the  case  against  each  was  distinct, 
depending  upon  its  own  evidence. (^) 

*Though,  as,  respects  the  remedy  of  the  cestui  que  trust,  each  i-^rypoT 
trustee  is  individually  responsible  for  the  whole  amount  of  the  L  J 
loss,  whether  he  was  the  principal  in  the  breach  of  trust,  or  was  merely 
a  consenting  party,  yet,  as  between  the  trustee,  themselves,  (unless  the 
transaction  was  vitiated  not  only  by  constructive  but  actual  fraud,  when 
the  court  will  hold  itself  entirely  aloof,(it))  it  seems  an  apportionment, 
or  contribution  amongst  the  trustees,  may  be  compelled  on  a  bill  filed 
for  the  purpose  ;(y)  and  so,  as  between  the  trustees  and  a  third  person 
who  has  reaped  the  benefit  of  the  breach  of  trust,  though  the  trustees 
must  make  the  disbursement  in  the  first  instance  to  the  injured  party, 
the  loss  may  eventually  be  cast  on  the  person  who  was  the  gainer  by  the 
breach  of  trust. (w) 

(p)  See  WilsoQ  V.  Moore,  1  M.  &  K.  146  ;  Lyse  v.  Kingdoa,  1  Coll.  188  ;  Rich- 
ardson V.  Jenkins,  1  Drewry,  477  ;  AUeyne  v.  Darcy,  4  Ir.  Ch.  Re.  206. 

(q)  Birls  v.  Betty,  6  Mad.  90. 

(?•)  L.iwrence  v.  Bowie,  2  Phill.  140  ;   1  C.  P.  Coop.  temp.  Cott.  241. 

(s)  Pitt  V.  Bonner,  1  Y.  &  C.  Cli.  Ca.  G70. 

{()  Attorney-General  v.  Wilson,  1  Cr.  &  Phil.  1,  see  28;  and  see  London  Gas- 
Light  Company  v.  Spottiswoode,  14  Beav.  272,  273. 

(u)  See  Lingard  v.  Bromley,  1  Ves.  &  B.  114;  Tarleton  v.  Hornby,  1  Y.  &  C. 
336;  Attorney-General  v.  Wilson,  1  Cr.  &  Phil.  28. 

(y)  Ex  parte  Shakeshaft,  3  B.  C.  C.  198,  per  Lord  Thurlow ;  Lingard  v.  Brom- 
ley, 1  V.  &  B.  114;  Perry  r.  Knott,  4  Beav.  180,  per  Lord  Langdale ;  and  see 
KnatchbuU  v.  Fearnhead,  3  M.  &  C.  122:  Pitt  v.  Bonner,  1  Y.  &  C.  Ch.  Ca.  670; 
Ex  parte  Burton,  3  Mont.  D.  &  De  Gex,  373  ;  Baynard  v.  Wolley,  20  Beav.  583  ; 
and  see  Wilson  v.  Goodman,  4  Hare,  54. 

(«')  Tratford  v.  Boehm,  3  Atk.  440  ;  Greenwood  v.  Wakeford,  1  Beav.  576  ; 
Booth  V.  Booth,  1  Beav.  125;  Lord  Montfort  v.  Lord  Cadogan,  17  Ves.  485;  19 
Ves.  635  ;  S.  C.  2  Mer.  3;  and  see  Howe  v.  Earl  of  Montfort,  7  Ves.  150,  151  ; 
Jacob  v.  Lucas,  1  Beav.  436  ;  Lincoln  v.  Wright,  4  Beav.  432.  But  if  a  tenant 
for  life  have  a  general  power  of  appointment,  a  person  taking  under  the  power 


608  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

In  TrafFovd  v.  Boehm,(;«)  Henry  Heathcote  and  Charles  Boehm  were 
the  trustees  of  Mr.  Trafford's  marriage  settlement,  and  the  fortune  of  the 
lady  was  placed  in  their  hands,  to  be  laid  out  in  a  purchase  of  lands  as 
soon  as  one  could  conveniently  be  found.  No  suitable  purchase  offer- 
ino-  the  money  was  invested  hy  the  direction  of  the  husband  in  South 
Sell  Stock,  and  a  loss  was  incurred.  Lord  Hardwicke  said,  '<  There  is 
no  doubt  this  court  will  endeavour  to  deliver  a  trustee  from  any  mischief 
that  may  happen  from  a  misapplication  of  trust  money,  and  in  the  pre- 
sent instance  the  *loss  must  first  come  out  of  the  estate  of 
[-■'•769]  ^^^  husband,  because  done  with  his  concurrence  or  subsequent 
assent,  for  he  has  passed  the  account  with  the  trustees,  and  constantly 
received  the  dividends  of  the  stock.  The  rule  of  the  court  is,  that  if  a 
trustee  err  in  the  management  of  the  trust  with  approbation  of  the 
cestui  que  trust,  it  must  be  made  good  first  out  of  the  estate  of  the  per- 
son who  consented  to  it." 

And  the  same  principle  was  acted  upon  in  the  case  of  Lord  Montfort 
V.  Lord  Cadogan.(y)  By  indenture  bearing  date  in  1772,  certain  lease- 
holds were  vested  in  trustees  upon  trust  in  the  first  place  to  renew  the 
leases  out  of  the  rents  and  jjrofits,  and  then  upon  trust  for  Lord  Mont- 
fort for  life,  remainder  to  Lady  Montfort  for  life,  remainder  to  the  issue. 
The  first  period  of  renewal  occurred  in  1786,  and  the  second  in  1800, 
and  Lord  Montfort  died  in  1799.  The  trustees,  instead  of  renewing  as 
they  should  have  done,  permitted  Lord  Montfort  during  his  life  and  Lady 
Montfort  after  his  decease,  to  receive  the  whole  rents  of  the  estate.  Lord 
Montfort,  the  son  and  only  issue,  renewed  the  lease  at  his  own  expense  in 
1S08,  during  the  lifetime  of  the  Dowager  Lady  Montfort,  and  then  filed 
a  bill  against  her,  the  executors  of  Lord  Montfort  his  father,  and  the 
ti'ustees,  to  be  repaid  the  money  he  had  advanced  for  the  renewal.  Sir 
W.  Grant  said,  <'  Though  my  opinion  is  that  these  trustees  are  answerable, 
they  are  not  alone  answerable.  The  tenants  for  life  have  acquiesced  in 
the  breach  of  trust,  and  profited  by  it  by  receiving  the  ii-hole  rents  and 
profits,  ajKirt  of  which  was  applicable  to  the  renewals.  AU  these  j^arties 
are  anstverable  to  the  plaintiff ;  hut  as  hetioeen  the  tenants  for  life  and 
the  trustees,  if  Lord  Montfort  has  left  assets,  they  will  in  the  first  p>lace 
be  applicable  to  make  good  so  much  of  the  fine  as  corresponds  with  the 
period  of  his  enjoyment.  Lady  Montfort  is  in  like  manner  answerable 
for  the  period  of  her  possession,  and  the  accruing  rents  during  her  life 
are  liable  to  be  impounded  to  make  good  the  demand  against  her.  What- 
ever can  be  got  from  these  funds  will  go  in  ease  of  the  trustees."  And 
the  decree  was,  that  the  renewal  fine  ought  to  be  paid  to  the  plaintiff  by 
the  trustees,  but  that  the  same  ought  to  be  paid  to  them  out  of  the  es- 
j--^--^,  tates  of  Lord  Montfort  deceased,  and  *of  the  Dowager  Lady  Mont- 
•-         J  fort,  according  to  the  times  they  had  respectively  been  in  posses- 

cannot  come  upon  the  estate  of  the  tenant  for  life,  the  donee  of  the  power,  for  a 
breach  of  trust  by  him,  for  the  estate  so  appointed  is  part  of  the  tenant  for  life's 
assets.  Williams  v.  Lomas,  16  Beav.  1.  Secus  where  the  decree  of  the  power  is 
».feme  covert,  except  in  a  case  of  actual  fraud  by  her;  Vaughan  v.  Vanderstegen, 
2  Drewry,  1G5,  3G3. 

{x)  3  Atk.  440.  (y)   17  Ves.  485. 


REMEDIES    OF    THE    CESTUI    QUE    TRUST.  609 

sion.  From  tlais  decree  some  of  the  parties  appealed, (2)  and  Lord  Eldon, 
before  whom  the  case  was  now  argued,  said,  "  One  question  is,  whether 
Lord  Montfort's  estate,  if  sufficient,  and  that  of  Lady  Montfort  should 
have  been  resorted  to  for  payment  of  the  plaintiff's  demand  before  the 
trustees  were  called  upon,  and  many  cases  have  established,  that  a  tenant 
for  life  joining  in  a  breach  of  trust  shall  he  ansiverahle  in  the  first  in- 
stance ;  but  the  cestui  que  trust  is  not  bound  to  wait  while  inquiries  as  to 
assets,  or  what  proportion  Lady  Montfort  is  to  pay,  are  depending.  My 
opinion  therefore  is,  that  the  master  of  the  rolls  was  perfectly  right  in 
charging  the  trustees  in  the  first  instance,  and  also  in  deciding,  that 
they  have  a  remedy  over  against  those  who  took  the  rents  and  profits 
which  ought  to  have  paid  the  fine."  His  lordship  then  proceeded  to 
consider  the  proportion  in  which  the  estate  of  Lord  Montfort  deceased, 
and  the  Dowager  Lady  Montfort,  ought  to  contribute.  '^Itis  a  little 
difficult,"  he  said,  "  to  determine  the  meaning  of  these  terms  in  which 
the  tenants  for  life  are  charged  according  to  the  times  they  have  respec- 
tively been  in  possession.  In  1799  (when  Lord  31ontfort  died,)  Lady 
Montfort  was  entitled  by  the  settlement  to  possession  of  the  leasehold  es- 
tate, under  a  lease  renewed  in  1786,  for  fourteen  years,  with  a  fund  ac- 
cumulating for  the  fine,  to  be  paid  on  the  nest  renewal  in  1800.  If  there- 
fore the  decree  is  to  be  understood,  that,  as  Lord  Montfort  enjoyed  from 
1772  to  1799,  and  Lady  Montfort  from  1799  to  1808,  when  the  fine  in 
question  was  paid,  that  sum  is  to  be  reimbursed  as  between  his  and  her 
estates  in  this  proportion,  that  his  estate  is  to  be  charged  according  to  the 
account  of  the  rents  between  1772  and  1799,  and  she  is  to  pay  according 
to  the  rents  from  1799  to  1808,  she  appears  to  me  to  be  charged  in  a  way 
in  which  she  is  not  chargeable.  My  opinion  is,  that  the  estate  of  the  late 
Lord  iMontfort  is  to  be  made  answerable  to  the  trustees  after  they  have  paid 
the  plaintiff;  and  Lady  Montfort  is  also  answerable,  but  only  for  the  pro- 
portion for  which  she  ought  to  be  called  upon,  with  a  due  regard  to  the 
obligation  of  the  trustees  to  put  *her  in  possession  of  the  estate  r;;;--r-i-| 
fully  renewed  in  1786,  and  with  an  accumulating  fund  to  be  L  J 
applied  to  another  renewal  in  1800.  Lord  Montfort  having  received  the 
rents  from  1772  to  1799,  and  not  having  renewed,  and  a  much  larger 
fine  of  course  being  required  at  the  end  of  twenty-eight  years  than  four- 
teen years,  his  estate  must  be  answerable  for  the  increase  ;  but  if  the  trus- 
teess  hould  not  find  his  estate  sufficient  to  answer  that,  I  cannot,  as 
between  them  and  Lady  Montfort,  throw  any  part  of  the  increase  upon 
her.     That  must  therefore  fall  upon  the  trustees  personally." 

If  a  tenant  for  life,  or  other  person  having  a  partial  interest,  be  an 
actor  in  a  breach  of  trust,  all  the  benefit  that  would  have  accrued  to  him, 
either  from  that  trust  fund,  or  any  other  estate  comprised  in  the  same 
settlement(n)  may  be  retained  as  against  him,  his  assignees  in  baukrupt- 
cy,(Z^)  or  (except  where  the  defence  of  purchase  for  value  without  notice 

{z)  19  Ves.  635  ;  S.  C.  2  Mer.  3. 

(«)  Woodyatt  v.  Gresley,  8  Sim.  180;  Ex  parte  Mitford,  1  B.  C.  C.  398;  see 
Priddy  v.  Rose,  3  Mer.  105  ;  Burridge  v.  Row,  1  Y.  &  C.  Ch.  Ca.  183,  583  ;  Lin- 
coln V.  Wright,  4  Beav.  432,  per  Lord  Langdale ;  Fuller  v.  Knight,  6  Beav.  205  ; 
M'Gachen  v.  Dew,  15  Beav.  84. 

{b)  Ex  parte  Turpin,  1  D.  &  C.  120  ;  Ex  parte  Smith,  1  Deac.  143  ;  Woodyatt 


610 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


is  applicable)  those  claiming  under  bim,(c)  until  the  amount  retained, 
with  the  accumulations  thereon, (cZ)  have  compensated  the  trust  estate  for 
the  loss  it  had  sustained.  It  was  contended  in  one  case,  that  on  a  simi- 
lar principle,  where  an  estate  was  devised  to  a  person  who  was  a  debtor 
to  the  testator,  the  debt  was  a  lien  on  the  devised  estate,  but  the  court 
not  finding  any  precedent  did  not  allow  the  claim. (e) 

If  the  trustee  become  hanknijit,  the  loss  may  be  proved  against  his 
estate,(/)  and  if  interest  would  have  been  decreed  in  equity  against  the 
trustee  himself,  it  will  constitute  part  of  *the  debt  in  the  proof 
[*' ''^^l  against  the  estate  in  the  hands  of  the  assign ees,(5r)  and  if  the 
breach  of  trust  was  a  sale  of  stock  and  misemployment  of  the  money,  the 
ceshd  que  trust  may,  at  his  option,  elect  to  prove  for  the  proceeds  of  the 
sale,  or  for  the  price  of  the  stock  at  the  date  of  the  commission  of  bank- 
rupt.(/«) 

If  the  bankrupt  trustee  was  one  of  a  firm,  and  the  trust  money  had 
been  lent  to  the  firm,  with  notice  of  the  equity  attached  to  it  then,  inas- 
much as  a  breach  of  trust  creates  a  joint  and  several  liability,  proof  may 
be  made  either  against  the  joint  estate  of  the  partners  or  the  separate 
estate  of  the  bankrupt  trustee,  at  the  option  of  the  cestui  que  trust  ;(i) 
and  if  the  bankrupt  has  laid  out  the  trust  money  on  a  mortgage,  the  cestui 
que  trust  is  not  put  to  his  election  whether  he  will  prove  for  the  debt,  and 
abandon  the  mortgage,  or  take  the  mortgage  and  abandon  the  debt,  but 
may  pi'ove  for  the  debt,  and  have  the  benefit  of  the  mortgage  also  ;[k)  and 
if  the  trust  money  has  been  invested,  though  improperly,  the  cestui  que  trust 
has  a  right  to  elect  to  prove  for  the  money  and  interest,  or  for  the  value 
of  the  securities  and  profits.(/)  But  if  the  bankrupt  in  whose  hands  the 
trust  fund  was,  be  one  of  the  trustees,  and  indebted  to  the  trust  estate, 
and  also  in  part  beneficially  interested  in  the  trust,  proof  cannot  be  made 
for  the  whole  amount,  but  only  for  the  balance  after  setting  off  the  bank- 
rupt's beneficial  interest  against  the  debt  due  from  him.^m) 

The  original  trust  debt  itself  will  be  barred  by  the  certificate  of  the 
bankrupt,  though  no  proof  was  made,  and  the  cestui  que  trust  did  not 
know  of  the  misapplication  of  the  trust  fund.(7i)     But  it  is  the  duty  of 

V.  Gresley,  8  Sim.  185,  per  Cur.;  Ex  parte  King,  2  M.  &  A.  410;  see  Smith  v. 
Smith,  1  Y.  &  C.  338  ;  Burridge  v.  Row,  1  Y.  &  C.  Ch.  Ca.  183,  583  ;  Raby  v. 
Ridehalgh,  1  Jur.  N.  S.  363. 

(c)  Woodyatt  v.  Gresley,  8  Sim.  180  ;  Priddy  v.  Rose,  3  Mer.  86  ;  Cole  v.  Mud- 
dle, 10  Hare,  186;  and  see  Morris  v.  Lavie,  1  Y.  &  C.  Ch.  Ca.  380;  Egbert  v.  But- 
ter, 21  Beav.  560. 

{d)  Ex  parte  King,  2  M.  &  A.  410.  (e)  Ex  parte  Barff,  1  De  Gex,  613. 

(/)  Keble  v.  Thompson,  3  B.  C.  C.  112  ;  Moons  v.  De  Bernales,  1  Russ.  301  ; 
Dornford  v.  Dornford,  12  Ves.  127  ;  Ex  parte  Shakeshaft,  3  B.  C.  C.  197  ;  Bick  v. 
Motly,  2  M.  &  K.  312  ;  Lincoln  v.  Wright,  4  Beav.  427. 

(g)  Dornford  v.  Dornford,  Bick  v.  Motly,  Moons  v.  De  Bernales,  iibi  supra. 

(A)  Ex  parte  Shakeshaft,  3  B.  C.  C.  197  ;  Ex  parte  Gurner,  1  Mont.  Deac.  &  De 
Gex,  497  ;  and  see  Ex  parte  Moody,  2  Rose,  413  ;  Ex  parte  Stutely,  1  Mont.  Deac. 
&  De  Gex,  643. 

(i)  Ex  parte  Heaton,  Buck.  368  ;  Ex  parte  Watson,  2  V.  &  B.  414;  see  Ex  parte 
Poulson,  1  De  Gex,  79. 

{k)  Ex  parte  Biddulph,  3  De  G.  &  Sm.  587 ;  Ex  parte  Geaves,  2  Jur.  N.  S.  651. 

(l)  In  re  Montefiore,  9  Jur.  562. 

(m)  Ex  parte  Turner,  2  De  Gex,  Mac.  &  Gor.  927. 

(«)  Ex  parte  Holt,  1  Deac.  248.     As  to  the  discharge  of  a  debt  created  by  a 


REMEDIES    OF    THE    CESTUI    QUE    TRUST,  Gil 

the  trustee  to  make  sure  that  wme  person  prove  on  behalf  of  the  trust, 
and  if  he  do  *not,  he  is  liable  in  equity  for  this  neglect  of  duty ;  r^Y^on 
and  though  he  has  obtained  his  certificate  he  will  remain  respon-  L  -I 
sible  personally  for  the  amount  that  might  have  been  received  by  way 
of  dividend. (o)  If  the  bankrupt  was  one  of  several  co-trustees,  who  were 
jointly  implicated  in  a  breach  of  trust,  then  proof  may  be  made  against 
the  bankrupt's  estate  for  the  whole  money  lost,  though  he  was  not  the 
party  benefited  by  the  breach  of  trust  ;(j^)  and  though  the  other  trustee 
be  living  and  solvent.(5)  And  the  proof  against  the  bankrupt,  will  not 
be  precluded  by  a  bond  given  not  to  sue  the  other  trustee  reserving  the 
rights  against  all  other  parties,(r)  though  a  release  to  the  other  trustee, 
being  an  extinguishment  of  the  debt,  would  prevent  any  subsequent 
proof  (.s) 

So  if  two  co-trustees  be  bankrupts,  proof  may  be  made  against  the 
estates  of  both ;(/)  but  of  course  more  than  20s.  in  the  pound  cannot  be 
received  in  the  whole.  Or  at  the  same  time  that  proof  is  made  against 
the  estate  of  one  who  is  a  bankrupt,  legal  proceedings  may  be  taken 
against  the  solvent  trustee;  for  proof  under  a  bankruptcy  is  not  pay- 
ment. ((A 

But  where  the  whole  debt  is  proved  against  the  estate  of  the  bankrupt 
trustee,  the  assignees  may  afterwards  file  a  bill,  and  compel  contribution 
from  the  other  trustee, (v)  even  where  the  bankrupt  trustee  himself  could 
not,  from  his  fraudulent  conduct,  have  obtained  such  relief. (i6') 

In  assigning  to  the  cestui  que  trust  the  foregoing  remedies  against  the 
trustee,  it  must  of  course  be  understood  that  the  cestui  que  trust  has  not 
himself  concurred  in  the  breach  of  duty,  or  subsequently  acquiesced  in 
it,  and,  a  fortiori,  has  not  executed  a  formal  release. 

If  a  cestui  que  trust  concur  in  the  breach  of  trust,  he  is  forever  estop- 
ped from  proceeding  against  the  trustee  for  the  consequences  *of  r^^fr^-i 
the  act. (a;)  Thus,  in  the  leading  case  of  Brice  v.  Stokes,(_?/)  L  -» 
where  the  trust  estate  was  sold  ivith  the  apjn^obation  of  Brice,  the  tenant 
for  life,  and  the  purchase-money  was  improperly  left  in  the  hands  of  one 
of  the  trustees  ivith  the  knowledge  of  Brice,  Lord  Eldon  held,  that  the 
trustees  were  answerable  to  the  remainderman  for  the  principal,  but  not 

breach  of  trust  under  the  Insolvent  Acts,  see  Thompson  v.  Finch,  22  Beav.  316 ; 
on  appeal,  25  L.  J.  N.  S.  (Ch.)  G81. 

(o)  (Jrrett  v.  Corser,  21  Beav.  52.         (p)  Ex  parte  Shakeshaft,  3  B.  C.  C.  197. 

(g)  Ex  parte  Beilby,  1  G.  &  J.  167.  (r)  lb. 

(a)  See  Blackwood  v.  Borrowes,  2  Conn.  &  Laws,  478. 

(t)  Keble  v.  Thompson,  3  B.  C.  C.  112  ;  Ex  parte  Poulsoii,  1  De  Gex,  79. 

(m)  Ex  parte  King,  1  Deac.  164,  &c. 

(v)  See  Ex  parte  Shakeshaft,  3  B.  C.  C.  97  ;  Bromley  v.  Lingard,  1  V.  &  B.  114. 

(w)  See  Muckleston  v.  Brown,  6  Ves.  68 ;  Joy  v.  Campbell,  1  Sch.  &  Lef.  335, 
339 ;  Ottley  v.  Browne,  1  B.  &  B.  360. 

(x)  Walker  v.  Symonds,  3  Sw.  64,  per  Lord  Eldon  ;  Wilkinson  v.  Parry,  4  Russ. 
272  ;  Cocker  v.  Quayle,  1  R.  &  M.  535 ;  Nail  v.  Punter,  5  Sim.  555  ;  Newman  v. 
Jones,  Rep.  t.  Finch,  58  ;  and  see  Fellows  v.  Mitchell,  1  P.  AV.  81  ;  Booth  v.  Booth, 
1  Beav.  125;  Langford  v.  Gascoyne,  11  Ves.  336;  White  v.  White,  5  Yes.  555  ; 
In  re  Chertsey  Market,  6  Price,  280,  284 ;  Baker  v.  Carter,  1  Y.  &  C.  255  ;  Byrchall 
V.  Bradford,  6  Mad.  13  ;  Morley  v.  Lord  Hawke,  cited  in  Small  v.  Attwood,  2  Y. 
&  J.  520 ;  Fyler  v.  Fyler,  3  Beav.  550. 

{ij)   11  Ves.  319. 


012  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

to  the  tenant  for  life  for  the  interest.  "  If,"  said  his  lordship,  "  there 
are  two  trustees,  and  a  transaction  takes  place,  in  which  the  fund  is  takea 
out  of  the  state  in  which  it  ought  to  have  remained,  and  is  not  placed 
in  a  state  in  which  it  ought  to  be,  but  is  kept  in  hands  which  ought  not 
to  retain  it,  if  any  particular  cestui  que  trust  has  acted  in  authorizing  that 
as  much  as  the  trustee  who  has  not  the  money  in  his  hands,  and  continues 
to  permit  it  to  be  so  treated,  in  a  question  between  that  cestui  que  trust 
and  that  trustee,  the  latter  shall  not  be  called  upon  by  the  former." 

But  persons  cannot  be  held  to  have  concurred  in  a  breach  of  trust  who 
had  not  the  means  of  knowing  that  the  acts  to  which  they  were  parties 
involved  a  breach  of  trust. (s) 

And  persons  cannot  concur  in  a  breach  of  trust,  who,  as  femes  covert(aj 
and  infants,(i)  have  no  legal  capacity  to  consent  to  the  transaction. 

But  neither  coverture  nor  infancy  will  be  a  protection  from  a  charge 
j-^-_r-,  of  fraud,  and  therefore  if  a  feme  covert,(c^  or  *infant,(^)  draw 
L  -I  w  a  trustee  to  commit  a  breach  of  trust,  such  feme  covert  or  infant 
cannot  afterwards  call  the  trustee  to  account  for  having  exceeded  the 
line  of  his  duty. 

And  a  feme  covert  will  be  bound  by  her  concurrence  in  a  breach  of 
trust  as  to  a  fund  which  is  settled  to  her  separate  use.(e)  But  she  will 
not  be  estopped  upon  the  ground  of  concurrence  where  it  was  not  her 
own  voluntary  act,  but  her  judgment  was  misled,  or  she  was  under  undue 
influence. (/)  And  ^  feme  covert  has  no  power  to  concur  in  any  act  as 
to  a  fund  settled  to  her  separate  use,  with  a  restraint  against  anticipa- 
tion, (^)  and  of  course  concurrence  will  not  operate  beyond  the  interest 
settled  to  her  separate  use,  as  if  a /erne  be  tenant  for  life  to  her  separate 
use  with  a  power  of  appointing  the  corjpus  by  will,  though  her  concur- 
rence would  affect  the  life  interest  it  does  not  prevent  the  appointees 
under  the  will  from  holding  the  trustees  responsible. (/i)  But  otherwise, 
if  the  feme  be  tenant  for  life,  with  a  general  power  of  appointment  which 
is  equivalent  to  ownership,  and  is  therefore  regarded  as  an  estate  to  her 
separate  use.(i) 

{z)  Buckeridge  v.  Glasse,  1  Cr.  &  Ph.  135,  per  Lord  Cottenh.'im. 

(a)  Ryder  v.  Bickerton,  cited  "Walker  v.  Symonds,  3  Sw.  80  ;  Underwood  v. 
Stevens,  1  Mer.  717;  Smith  v.  French,  2  Atk.  243;  Needler's  case,  Hob.  225; 
Lench  v.  Lench,  10  Ves.  517,  per  Sir  W.  Grant;  Lord  Montfort  v.  Lord  Cadogan, 
19  Ves.  639,  640,  per  Lord  Eldon ;  and  see  Parkes  v.  White,  11  Ves.  221  ;  Bate- 
man  v.  Davis,  3  Mad.  98. 

(h)  See  supra,  pp.  34,  39  ;  and  Wilkinson  v.  Parry,  4  Russ.  276. 

(c)  Ryder  v.  Bickerton,  cited  Walker  v.  Symonds,  3  S\r.  82,  per  Lord  Hard- 
wicke,  and  see  Savage  v.  Foster,  9  Mod.  35  ;  Lord  Montfort  v.  Lord  Cadogan,  19 
Ves.  640  ;  Vandebende  v.  Livingston,  3  Sw.  625  ;  Evans  v.  Bicknell,  6  Ves.  181  ; 
Jones  v.  Kearney,  1  Dru.  &  War.  166. 

(d)  See  the  cases  at  note  (a),  p.  39,  supra. 

(e)  Walker  v.  Shore,  19  Ves.  387  ;  see  393  ;  and  see  Buckeridge  v.  Glasse,  Cr, 
&  Ph.  136. 

(/)  Whistler  v.  Newman,  4  Ves.  129 ;  Hughes  v.  Wells,  9  Hare,  773  ;  and  see 
Walker  v.  Shore,  19  Ves.  393. 

{g)  Cocker  V.  Quayle,  1  R.  &  M.  535;  but  see  Derbishire  v.  Home,  3  De  G.  M. 
&G.  pp.  102,  113. 

(A)  Kellaway  v.  Johnson,  5  Beav.  319. 

(j)  Brewer  v.  Swirles,  2  Smale  &  Gifif.  219. 


REMEDIES    OF    THE    CESTUI    QUE    TRUST.  613 

Again,  a  cestui  que  trust,  tbougli  he  did  not  concur  at  the  time,  may 
have  acquiesced  in  the  breach  of  trust  subsequently. (/»•) 

How  far  the  mere  knoicledge  of  a  right  to  sue  in  respect  of  a  breach 
of  trust,  and  the  abstaining  to  sue  will,  without  any  other  act,  constitute 
laclies  in  the  eye  of  a  court  of  equity,  and  disentitle  the  plaintiff  to  relief, 
as  in  the  particular  ^instances  of  purchases  by  trustees,  &c.,  above  ri^i'j'jn-i 
referred  to,(/)  cannot  be  considered  as  clearly  settled.  The  present  L  J 
master  of  the  rolls  in  a  late  case  appears  to  have  thought  that  mere  delay 
disentitled  a  plaintiff  under  such  circumstances  to  relief,  but  his  decision 
rested  also  on  facts  amounting,  in  his  honor's  opinion,  to  actual  acquies- 
cence.(m) 

A  testator  gave  400?.  to  A.,  B.,  C,  and  D.,  his  executors,  upon  trust 
to  invest  in  lands  to  be  settled  on  E.  The  money  was  lent  improperly 
to  A.  upon  the  security  of  his  bond,  and  lost;  but,  as  E.,  the  legatee, 
had  constantly  accepted  interest  on  the  loan,  and  had  neither  brought 
his  bill,  nor  called  on  the  executors  to  invest  the  money  in  land,  it  was 
held  he  had  virtually  consented,  and  thus  estopped  himself  from  holding 
the  trustees  responsible. (n) 

In  another  case,  on  the  marriage  of  Mr.  Scgar  with  Miss  French,  a 
sum  of  1000?.,  belonging  to  the  lady  was  assigned  to  her  mother  as 
trustee,  and  by  indenture  executed  after  the  marriage,  the  trusts  were 
declared  for  the  separate  %ise  o£  the  wife,  remainder  to  the  issue,  remain- 
der, if  no  issue,  to  the  survivor.  At  the  joint  solicitation  of  the  husband 
and  wife  the  money  was  advanced  to  the  husband,  and,  with  the  excep- 
tion of  350?.,  was  never  repaid ;  but  the  mother,  who  was  the  trustee, 
had  threatened  to  proceed  for  the  remainder,  when  the  daughter  fell 
upon  her  knees  and  begged  her  to  desist,  as  she  would  release  her  from 
all  claims.  For  seven  years  after  the  husband's  death  the  widow  lived 
with  her  mother,  and  made  no  demand,  but  several  times  offered  to  exe- 
cute a  release.  The  daughter  then  married  again,  and  a  bill  was  filed 
against  the  mother  to  make  good  the  money  lost ;  but  Lord  Hardwicke 
said,  "  I  think  it  comes  very  near  the  case  of  an  infant,  who,  contracting 
a  debt  during  his  minority,  shows  his  consent  to  it  by  confirming  it  after 
he  comes  of  age,  which  shall  effectively  bind  him,  though  it  was  voidable 
at  his  election.  So  here  a  promise  by  the  wife  to  release  during  the 
coverture,  it  is  certain,  would  not  bind  the  wife,  but  if,  after  the  death 
of  her  *husband,  she  repeats  the  promise,  it  is  a  confirmation  of  ^^-„^-, 
it,  and  good."(o)  '-         -" 

It  seems  that  a  public  and  fluctuating  body,  as  parishioners,  may  bo 

{k)  Walker  v.  Symonds,  3  Sw.  64,  per  Lord  Eldon  ;  Hope  v.  Liddell,  21  Beav. 
183;  Brice  v.  Stokes,  11  Ves.  32G ;  Macdonnell  v.  Harding,  *7  Sim.  190:  Broad- 
hurst  V.  Balguy,  1  Y.  &  C.  Ch.  Ca.  16  ;  Lincoln  v.  Wright,  4  Beav.  432  ;  Black- 
wood V.  Borrowes,  2  Con.  &  Laws.  459  ;  and  see  Thompson  v.  Simpson,  1  Dru.  & 
War.  459  ;  Kent  v.  Jackson,  14  Beav.  384  ;  Graham  v.  Birkenhead  Co.,  2  Mac.  & 
Gor.  146  ;  Stone  v.  Godfrey,  5  De  Gex,  Mac.  &  Gor.  T6. 

(Z)  See  p.  742,  supra  ;  Story  v.  Gape,  2  Jur.  N.  S.  706. 

(w)  Browne  v.  Cross,  14  Beav.  105,  pp.  Ill,  113  ;  and  see  the  cases  at  pp.  741, 
742,  743,  supra. 

(n)  Harden  v.  Parsons,  1  Ed.  145;   and  see  Loader  v.  Clarke,  2  Mac.  &  Gor.  382. 

(o)  Smith  V.  French,  2  Atk.  243. 


614  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

bound  by  acquiescence.(p)  But  it  is  almost  unnecessary  to  repeat,  that 
acquiescence  cannot  be  objected  against  a  class  of  persons,  as  parish- 
ioners or  creditors,  icith  the  same  de<jree  of  force  as  against  a  single  indi- 
vidual.(5) 

Lastly,  a  cestui  qne  trust  may  preclude  himself  from  his  remedy  against 
the  trustee  by  executing  a  formal  release  of  the  breach  of  trust,  or  giving 
validity  to  the  transaction  by  an  express  confirmation. {i-)  And  if  the 
cesttii  que  trust  release  the  principal  in  a  breach  of  trust  or  fraud,  he 
cannot  afterwards  proceed  against  the  other  parties  who  would  have  been 
secondarily  liable. (s) 

But  acquiescence,  and  release  or  confirmation,  to  have  the  effect  we 
have  mentioned,  must  be  understood  to  be  accompanied  with  the  follow- 
ing conditions  : — 

1,  As  in  the  case  of  concurrence,  the  cestiu  que  trust  must  be  sin  juris, 
and  not  a  feme  covert  or  infant,  and  in  the  case  of  infants,  the  court  con- 
tinues its  protection  even  after  they  have  attained  twenty-one  till  such 
time  as  they  have  acquired  all  proper  information.!^^)  However,  a.  feme 
covert  is  clearly  sui  Juris  as  regards  property  settled  to  her  separate  use  in 
possession  where  there  is  no  restraint  against  anticipation ;  though  she  can- 
not bind  herself  prospectively  as  to  an  estate  which  will  stand  limited  to 
her  separate  use  upon  a  contingency  which  has  not  yet  occurred,  (w) 
r*77Si  Whether  the  separate  estate  *Qf  a  married  woman  who  is  re- 
L  -I  strained  from  application  can  be  affected  by  her  acquiescence, 
appears  to  be  at  present  unsettled.  In  a  late  case(y)  Lord  Justice 
Turner  intimated  his  leaning  to  be  in  favour  of  the  affirmative,  though, 
but  for  such  high  authority,  the  negative  might  have  seemed  the  sounder 
view.  The  language  of  Lord  Justice  Knight  Bruce  in  the  case  alluded 
to,  was  more  guarded.  But,  of  course,  the  restraint  on  anticipation  can 
impose  no  fetter  as  respects  income  accrued  due  before  the  acts  of  acqui- 
escence relied  upon.(i6-) 

2.  The  cestid  que  trust  must  be  fully  cognisant  of  all  the  facts  and 
circumstances  of  the  case.(x) 

(p)  See  Corporation  of  Ludlow  v.  Greenhouse,  1  Bligh,  New  Eei>.  92  ;  In  re 
Chertsey  Market,  6  Price,  280,  284;  Edenborough  v.  Arciibishop  of  Canterbury, 
2  Russ.  105,  108;  Attorney-General  v.  Scott,  1  Yes.  415;  Attorney- General  v. 
Cuming,  2  Y.  &  C.  Ch.  Ca.  150. 

(q)  See  supra,  p.  471. 

(r)  Blackwood  v.  Borrowes,  2  Conn.  &  Laws.  459  ;  French  v.  Hobson,  9  Yes. 
103;  Wilkinson  v.  Parry,  4  Russ.  272;  Aylwyn  v.  Bray,  cited  in  Small  v.  Att- 
wood,  2  Y.  &  J.  517. 

(s)  Thompson  v.  Harrison,  2  B.  C.  C.  164  ;  see  Blackwood  v.  Borrowes,  2  Conn. 
&  Laws,  478. 

{t)  See  Walker  v.  Symonds,  3  Sw.  69 ;  Hicks  v.  Hicks,  3  Atk.  274 ;  Osmond  v. 
Fitzroy,  3  P.  W.  131 ;  Hylton  v.  Hylton,  2  Yes.  547  ;  Kilbee  v.  Sneyd,  2  Moll.  233  ; 
March  v.  Russell,  3  M.  &  C.  42,  44  ;  Bateman  v.  Davis,  3  Mad.  98  ;  Wedderburn 
V.  Wedderburn,  4  M.  &  C.  41. 

(u)  Mara  v.  Manning,  2  Jon.  &  Lat.  311. 

{v)  Derbishire  v.  Home,  3  De  Gex,  Mac.  &  Gor.  80  ;  Robinson  v.  Wheelwright, 
6  De  Gex,  M.  &  G.  535  ;  Wilton  v.  Hill,  15  L.  J,  N.  S.  (Ch.)  156. 

(w)  Rowley  v.  Unwin,  2  Kay  &  John.  138. 

(x)  Adams  v.  Clifton,  1  Russ.  297  ;  Walker  v.  Symonds,  3  Sw.  1 ;  Randall  v. 
Errington,  10  Yes.  423;  Buckeridge  v.  Glasse,  Cr.  &  Ph.  126;  Bennett  v.  Colley, 
2  M.  &  K.  232,  per  Lord  Brougham;  and  see  Earl  of  Chesterfield   v.  Janssen,  2 


1 


REMEDIES    OF    THE    CESTUI    QUE    TRUST.  615 

3.  The  cestui  que  trust  must  not  only  be  acquainted  with  i\\Q  facts, 
but  be  also  apprised  of  the  law,  or  how  those  facts  would  be  dealt  with 
if  brought  before  a  court  of  equity. (^) 

4.  The  release  must  not  be  wrung  from  the  cestui  que  trust  by  distress 
or  terror,  (s) 

SECTION  IV. 

OF   THE   MODE   AND    EXTENT   OP   REDRESS   IN    BREACHES    OF   TRUST 
COMMITTED   BY   TRUSTEES   OP   CHARITIES. 

I.  Of  the  mode  of  redress. 

The  regular  and  ordinary  course  of  proceeding  is  by  way  of  ri^i-j'jcn 
*information(l)  in  the  name  of  the  attorney-general :  the  king  is  L  J 
parens  pair ia',  and  it  is  the  duty  of  his  officer,  the  attorney-general,  to 
see  that  justice  is  administered  to  every  part  of  his  majesty's  subjects. 
Relators  need  not  be  personally  interested. (a)  They  ai-e  required  merely 
because  the  attorney-general,  prosecuting  a  suit  in  the  name  of  the  crown, 
would  not  be  liable  to  costs,  and  unless  some  person  were  made  responsi- 
ble, proceedings  might  be  instituted  very  oppressive  to  individuals. (?/) 

In  the  reign  of  Elizabeth  an  act  was  passed,  commonly  called  the 
Statute  of  Charitable  Uses,(c)  by  which  the  court  of  chancery  was 
empowered  to  issue  commissious  to  certain  persons,  including  the  bishop 
of  the  diocese,  who  were  authorized,  after  summoning  a  jury  of  the 
county  where  the  property  was  situate,  to  inquire  into  any  abuse  or  mis- 
application of  the  trust  estate.  Many  of  these  proceedings  were  so  little 
consonant  with  justice,  and,  on  appeal  to  the  lord  chancellor,  were  found 
at  once  so  puzzling,  and  so  far  from  accomplishing  the  object  in  view, 
that  at  length  the  practice  of  issuing  commissions  fell  into  disuse,  and 
people  again  resorted  to  the  original  process  by  way  of  information. (cZ) 

Ves.  146,  149,  152,  158;  Roche  v.  O'Brien,  1  B.  &  B.  339,  and  the  cases  there 
cited ;  Bowes  v.  East  London  Water  Works  Company,  3  Mad.  375  ;  M'Carthy  v. 
Decais,  2  R.  &  M.  615  ;  Wedderburn  v.  Wedderburn,  2  Keen,  722  ;  4  M.  &  C.  41 ; 
Munch  V.  Coclierell,  9  Sim.  339  ;  5  M.  &  Cr.  179  ;  Broadhurst  v.  Balguy,  1  Y.  & 
C.  Ch.  Ca.  16. 

(,?/)  Cockerell  v.  Cholmley,  1  R.  &  M.  425,  per  Sir  J.  Leach  ;  and  see  Chester- 
field v.  Janssen,  2  Ves.  146,  149,  152,  158  ;  Bowes  v.  East  London  Water  Works 
Company,  3  Mad.  384  ;  M'Carthy  v.  Decaix,  2  R.  &  M.  615  ;  iLarker  v.  Marker,  9 
Hare,  16;  Stone  v.  Godfrey,  5  De  Gex,  Mac.  &  Gor.  90  ;  Burrows  v.  Walls,  5  De 
Gex,  M.  k  G.  254. 

(z)  Bowles  V.  Stewart,  1  Sch.  &  Lef.  209,  see  226. 

(a)  Attorney-General  v.  Vivian,  1  Russ.  226. 

{b)  Corporation  of  Ludlow  v.  Greenhouse,  1  Bligh,  N.  R.  48,  per  Lord  Redesdale. 

(e)  43  Eliz.  c.  4. 

{d)  Corporation  of  Ludlow  \.  Greenhouse,  1  Bligh,  N.  R.  61,  62,  per  Lord  Re- 
desdale. 

(1)  Where  the  management  of  no  charity  revenue  is  concerned,  as  in  a  suit  in- 
stituted by  parishioners  for  the  mere  purpose  of  setting  aside  the  nomination  of  a 
clerk  to  the  bishop  by  the  trustees  of  the  adowson,  the  attorney-general  need  not 
be  a  party  ;  it  is  the  simple  case  of  cestuis  que  tries!  calling  upon  the  trustees  to  ex- 
ercise the  legal  right ;  and  the  suit  should  be  not  by  information,  but  by  bill.  See 
Attorney-General  v.  Parker,  1  Ves.  43;  S.  C.  3  Atk.  576;  Attorney-General  v, 
Forster,  10  Ves.  335;  Attorney-General  v.  Newcombe,  14  Ves.  1 ;  Davis  v.  Jenkins, 
3  V.  &  B.  151 ;  Inhabitants  of  Clapham  v.  Hewer,  2  Vern.  387  ;  Attorney-General 
V.  Cuming,  2  Y.  &  C.  Ch.  Ca.  149. 


616       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

After  commissions  had  ceased  to  be  issued,  the  legislature  endeavoured 
to  provide  a  remedy,  not  as  before,  by  creating  a  new  jurisdiction,  but 
by  oivino-  liberty  to  proceed  under  the  old  jurisdiction  in  a  summary 
mod^'e  The  52  Geo.  3,  c.  101,  commonly  called  Sir  Samuel  Romilly's 
Act,  and  intituled  "  An  act  *to  provide  a  summary  remedy  in 
[*780]  ^^gg'g  of  abuses  of  trusts  created  for  charitable  purposes,"  declared 
that  "  in  every  case  of  a  breach  of  any  trust  created  for  charitable  pur- 
poses, or  whenever  the  direction  or  order  of  a  court  of  equity  should  be 
deemed  necessary  for  the  administration  of  any  trust  for  charitable  pur. 
poses,  it  should  be  lawful  for  any  two  or  more  persons  to  present  a  peti- 
tion to  the  chancellor,  master  of  the  rolls,  or  court  of  exchequer,  praying 
such  relief  as  the  nature  of  the  case  might  require,  such  petition  to  be 
heard  in  a  summary  way  upon  affidavits  or  such  other  evidence  as  should 
be  produced,  the  order  made  thereon  to  be  final  and  conclusive,  unless 
appealed  against  to  the  house  of  lords  within  two  years  from  the  entry 
thereof."  And  it  was  provided  that  "  every  petition  should  be  signed 
by  the  persons  preferring  the  same  in  the  presence  of  and  be  attested  by 
the  solicitor  or  attorney  concerned  for  the  petitioners,  and  should  be 
allowed  by  his  majesty's  attorney  or  solicitor-general." 

These  enactments,  though  penned  by  a  very  able  hand,  have  been 
strongly  reprobated  as  very  loosely  and  obscurely  worded — as  tending 
rather  to  increase  than  diminish  the  expense  of  the  application — in  short, 
as  having  produced  more  mischief  than  benefit.  "  It  was  a  wise  saying," 
observed  Lord  Redesdale,  "  that  the  farthest  way  about  was  often  the 
nearest  way  home,  and  he  believed  that  these  summary  proceedings 
would  be  not  always  the  nearest,  or  at  least  not  the  best  way  home."(e) 

Upon  the  construction  of  this  statute  the  following  points  have  been 
resolved  : — 

1.  Although  the  act  authorises  ani/  two  or  more  persons  to  present 
the  petition,  the  words  must  be  understood  to  mean  any  persons  having 
an  interest :(/)  and  the  court  is  bound  to  see  not  only  that  the  peti- 
tioners are  possessed  of  a  clear  interest,  but  that  they  prove  themselves 
to  be  possessed  of  the  identical  interest  they  allege  in  their  petition. (</) 

2.  It  has  been  said  that  the  body  of  the  statute  is  to  be  governed  by 
r^-o-i-i  ^the  preamble,  and  therefore  will  not  authorize  a  petition  for  any 
L  -I  other  purpose  than  relief  against  a  breach  of  trust.  (A)  But  this 
narrow  construction  gives  no  force  to  the  words  in  the  act,  "  or  tchen- 
ever  the  direction  or  order  of  a  court  of  equity  shall  he  deemed  necessary 
for  the  administration  of  any  trust  for  charitable  jnirposes  ;"  and  the 
doctrine  has  since  been  called  into  question,  and  may  be  considered  as 
overruled,  (i) 

(e)  Corporation  of  Ludlow  v.  Greenhouse,  1  Bligh,  N.  R.  49. 

(/)  In  re  Bedford  Charity,  2  Sw.  518,  per  Lord  Eldon. 

(g)  Corporation  of  Ludlow  v.  Greenhouse,  1  Bligh,  N.  R.  91,  per  Lord  Eldon. 

(h)  Corporation  of  Ludlow  v.  Greenhouse,  1  Bligh,  N.  R.  66,  67,  81,  per  Lord 
Redesdale;  and  see  In  re  Clarke's  Charity,  8  Sim.  42. 

{i)  In  re  Upton  Warren,  1  M.  &  K.  410  ;  In  re  Parke's  Charity,  12  Sim.  332 ;  In 
re  Manchester  New  College,  16  Beav.  610;  In  re  Hall's  Charity,  14  Bear.  115; 
and  see  In  re  Slewringe's  Charity,  3  Mer.  707  ;  Ex  parte  Rees,  3  V.  &  B.  12  ;  In  re 
Clarke's  Charity,  8  Sim.  34;  In  re  Phillipott's  Charity,  8  Sim.  381 ;  and  the  cases 
collected  in  the  note  to  In  re  Hall's  Charity,  14  Beav."  120. 


REMEDIES    OF    THE    CESTUI    QUE    TRUST.  G17 

3.  The  provision  extends  only  top/tu'u  and  simple  cases  for  the  opinion 
or  direction  of  the  court,(/.-)  not  where  a  question  is  to  be  discussed 
adversely  who  are  to  be  intrusted  with  the  administration  of  the  charity 
estate,(Z)  or  who  are  entitled  to  the  benefit  of  it,(m)  or  whether  the 
trustees  or  governors  of  the  charity  have  or  not,  by  the  constitution  of 
it,  a  certain  authority,  as  of  removing  a  master,(n)  or  where  any  stranger 
is  interested(o)  (for  the  right  of  a  third  person  cannot  be  disposed  of  on 
petition, Oj)  or  where  the  relief  which  is  sought  is  directed  against  the 
assets  of  a  deceased  trustee, (5)  or  where  the  object  of  the  application  is 
not  to  have  the  existing  charity  regulated,  *but  to  have  the  funds  p-g2"| 
diverted  to  some  other  charitable  purpose. (r)  The  court  has  juris-  L  """J 
diction,  however,  under  the  act,  to  settle  a  scheme  of  the  charity,(.v)  or 
to  alter  a  scheme  previously  settled  by  decree, (^)  or  to  appoint  new 
trustees,(H)  or  where  parishes  have  been  divided  to  apportion  the  charities 
amongst  the  districts,(f)  or  to  direct  a  sale  of  the  charity  estate  in  a 
proper  case,(«7)  and  generally  the  court,  as  between  the  trustees  and 
cestuis  que  trust  of  the  charity,  exercises  a  discretion  as  to  whether  it 
can  put  in  operation  the  powers  given  by  the  act  with  benefit  to  the 
charity,  (a:) 

4.  The  allowance  "  by  the  attorney  or  solicitor-general"  must  be  con- 
strued with  reference  to  the  previous  law  upon  the  subject,  and  must 
therefore  be  taken  to  mean,  not  by  the  attorney  or  solicitor-general  iudif- 

[k)  Corporation  of  Ludlow  v.  Greenhouse,  1  Mad.  92,  reversed  in  D.  P.  1  Bl. 
N.  R.  17,  see  G6,  81,  89  ;  In  re  Pliillipott's  Charity,  8  Sim.  381  ;  Ex  parte  Brown, 
Coop.  295  ;  Ex  parte  Skinner,  2  Mer.  456,  457,  per  Lord  Eldon  ;  and  see  In  re 
Chertsey  Marlset,  6  Price,  277. 

{I)  In  re  West  Retford  Church  and  Poor-lands,  10  Sim.  101;  In  re  Phillipott's 
Charity,  8  Sim.  381. 

{m)  Corporation  of  Ludlow  v.  Greenhouse,  1  Bligh,  N.  R.  66;  Re  Manchester 
New  College,  16  Beav.  610;  In  re  Clarke's  Charity,  8  Sim.  34. 

(?i)  Attorney-General  v.  Corporation  of  Bristol,  14  Sim.  648  ;  and  see  Man- 
chester New  College,  16  Beay.  610;  Attorney-General  v.  East  Retford  Grammar 
School,  17  Law  Journ.  N.  S.  Ch.  450;  but  see  Re  Fremington  School,  10  Jur.  512  ; 
11  Jur.  421 ;  Re  Phillips's  Charity,  9  Jur.  959. 

(0)  Corporation  of  Ludlow  v.  Greenhouse,  1  Bligh,  N.  R.  66,  per  Lord  Redes- 
dale ;  Ex  parte  Rees,  3  V.  &  B.  10;  In  re  Manchester  New  College,  16  Beav.  610  ; 
but  see  In  re  Upton  Warren,  1  M.  &  K.  410. 

{p)  Corporation  of  Ludlow  v.  Greenhouse,  1  Bl.  N.  R.  93,  per  Lord  Eldon. 

{q)  Ex  parte  Skinner,  Wils.  15,  per  Lord  Eldon  ;  In  re  Saint  Wenn's  Charity,  2 
S.  &  S.  66. 

(r)  In  re  Reading  Dispensary,  10  Sim.  118. 

\s)  In  re  Royston  Free  Grammar  School,  2  Beav.  228  ;  In  re  Berkhampstead 
Free  Grammar  School,  2  V.  &  B.  134;  In  re  Shrewsbury  Grammar  School,  1  Mac. 
&  Gor.  324 ;  1  Hall  &  Tw.  401. 

{t)  Attorney-General  v.  Bishop  of  Worcester,  9  Hare,  328. 

{u)  Bignold  v.  Springfield,  7  CI.  &  Fin.  71. 

{v)  In  re  West  Ham  Charities,  2  De  Gex  &  Sm.  218. 

(w)  Re  Parke's  Charity,  12  Sim.  328.  In  Re  Alderman  Newton's  Charity,  12 
Jur.  1011  (the  case  of  an  exchange),  and  again,  in  Re  Sowerby's  Charity,  Jan.  26, 
1849,  before  the  V.  C.  of  England  (the  case  of  a  willing  purchaser)  such  orders 
were  made,  but  the  court  did  not  warrant  the  title ;  but  in  Suir  Island  Female 
Charity  School,  3  Jon.  &  Lat.  171,  the  lord  chancellor,  notwithstanding  Re  Parke's 
Charity,  declined  to  make  such  an  order.  As  to  the  jurisdiction  of  the  court  gene- 
rally to  sell  charity  lands,  see  supra,  p.  503;  Re  Ashton  Charity,  22  Beav.  288. 

{x)  In  re  Manchester  New  College,  16  Beav.  610. 

April,  1858.— 40 


618 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


1 


ferently,  but  by  the  attorney-general,  when  there  is  such  an  officer,  and 
in  the  vacancy  of  that  office,  by  the  solicitor-general. (y) 

5  If  the  petition  be  not  signed  by  the  attorney-general  or  solicitor- 
o-eneral,  or  if,  after  signature,  it  be  not  duly  served,  any  order  made  by 
tiie  court  will  be  an  absolute  nullity,(i)  and  the  petition  may  be  taken 
off  the  file  for  irregularity. (a) 

6.  As  the  intention  of  the  legislature  was  to  guard  the  charity  fund 
from  abuse,  and  with  that  view  to  prevent  proceedings  from  being  insti- 
tuted, as  they  frequently  were  before,  for  no  other  reason  than  because 

it  was  known  the  costs  would  *be  paid  out  of  the  charity  estate, 
[*783]  ^^^  attorney-general,  or,  in  the  vacancy  of  that  office,  the  solicitor- 
general,  ought  not  to  sanction  the  petition  with  his  signature  but  upon 
as  much  deliberation  as  if  the  relief  were  sought  by  way  of  informa- 
tion.^Z/) 

7.  The  attorney-general  by  his  allocatur,  or  allowance,  of  the  petition, 
is  -not functus  officio,  and  precluded  from  all  future  control,  but  must  be 
made  a  party  to  any  subsequent  proceedings  under  the  petition,  as  he 
would  have  been  to  all  proceedings  by  way  of  information. (c) 

8.  The  attorney-general,  as  representing  the  person  of  the  king  in  his 
character  of  j^arens  patrifc,  is  bound  to  see  justice  done,  not  only  to  the 
plaintiff  in  the  petition,  but  also  to  the  trustees  and  other  defendants,  and 
therefore  is  not  estopped  by  his  allocatur  of  the  petition  from  afterwards 
correcting  his  judgment,  but  may  support  or  oppose  the  views  of  the 
petitioners,  as  in  his  discretion  he  may  think  fit.(f/) 

9.  When  the  jurisdiction  of  the  court  has  been  once  attracted  by  the 
petition,  any  subsequent  order  may  be  made  upon  motion  without  the 
expense  of  any  further  petition. (e^ 

10.  No  appeal  lies  to  the  lord  chancellor  from  an  order  made  by  the 
master  of  the  rolls,  but  only  to  the  house  of  lords  directly.(/) 

Under  powers  given  by  the  58  Geo.  3,  c.  91,  and  59  Geo.  3,  c.  81,  cer- 
tain commissioners  of  inquiry  into  charities  were  appointed,  and  by  the 
59  Geo.  3,  c.  91,  it  was  enacted,  that  when  it  appeared  to  such  commis- 
sioners of  inquiry  that  the  directions  or  orders  of  a  court  of  equity  were 
requisite  for  remedying  any  neglect,  breach  of  trust,  fraud,  abuse,  or 
misconduct  in  the  management  of  any  trust  created  for  charitable  pur- 
r*--o_i-i  poses,  &c.,  it  should  be  lawful  for  the  said  commissioners,  *to 
L  '  -I  certify  the  particulars  of  such  case  to  his  majesty's  attorney- 
general,  and  thereupon  it  should  be  lawful  for  the  attorney-general  to 

(?/)  Corporation  of  Liidlo^v  v.  Greenhouse,  1  Bligh,  N.  R.   51,  52,  82,  per  Lord 
Redesdale  ;  Ex  parte  Skinner,  2  Mer.  456,  per  Lord  Eldon. 
(z)  Attorney-General  v.  Green,  1  J.  &  W.  305. 
(ff)  In  re  Dovenby  Hospital,  1  M.  &  Cr.  279. 
{b)  Ex  parte  Skinner,  2  Mer.  456,  per  Lord  Eldon. 

(c)  Corporation  of  Ludlow  v.  Greenhouse,  1  Bligh,  N.  R.  51,  65,  82,  83,  per  Lord 
Redesdale;  Attorney-General  v.  Stamford,  1  Phill.  737;  and  see  In  re  Chertsey 
Market,  6  Price,  271  ;  Attorney-General  v.  Haberdashers'  Company,  15  Bcav.  397. 

(d)  Corporation  of  Ludlow  v.  Greenhouse,  1  BL  N.  R.  43-52. 

(e)  In  re  Slewringe's  Charity,  3  Mer.  707  ;  Ex  parte  Friendly  Society,  10  Yes. 
287  ;  In  re  Chipping  Sodbury  School,  5  Sim.  410. 

(/)  Re  Royston  Grammar  School,  9  L.  J.N.  S.  Ch.  250  ;  and  see  Re  Manchester 
College,  16  Beav.  618. 


REMEDIES    OF    THE    CESTUI    QUE    TT.UST.  619 

apply  to,  or  commence  a  suit  in  the  Court  of  Cliancery,  stating  and  set- 
ting forth  the  neglect,  breach  of  trust,  fraud,  abuse,  or  misconduct  or 
other  cause  of  complaint  or  application,  and  praying  such  relief  as  the 
nature  of  the  case  might  require.  The  labours  of  these  commissioners 
of  inquiry  proved  very  valuable,  and  many  informations  were  filed  in 
consequence  of  certificates  made  by  them;  but  their  powers,  after  being 
frequently  continued,  expired  in  1837. 

By  the  late  Charitable  Trusts  Act,  1853,  great  additional  facilities 
have  been  afi'orded  for  detecting  and  remedying  breaches  of  trust  in 
charity  matters. 

Four  commissioners  are  appointed, (y)  to  whom  are  confided  powers  of 
inquiry(A)  similar  to  those  given  to  the  commissioners  appointed  by  the 
acts  of  George  3,  and  also  a  similar  power  of  certifying  cases  to  the 
attorney-general  as  fit  for  his  interference. (i) 

In  cases  of  charities  the  incomes  of  which  exceed  30/.  per  annum,  the 
same  jurisdiction  is  given  in  charity  cases  to  the  chancery  judges  at 
chamlDers  as  was  before  the  act  exercisable  by  the  Court  of  Chancery  or 
the  lord  chancellor  intrusted  with  the  custody  of  lunatics  in  a  suit  regu- 
larly constituted,  or  upon  petition  ;  but  the  judge  may  direct  an  informa- 
tion, bill,  or  petition  to  be  filed  or  presented. (7^;)  And  the  provisions  of 
the  act  in  respect  to  charities  whose  incomes  exceed  301.  per  annum,  are 
applicable  to  charities  within  the  city  of  London,  the  income  whereof  is 
less  than  oOl.  per  annum. (/) 

Where  the  incomes  of  charities  do  not  exceed  30/.  per  annum,  the 
District  Courts  of  Bankruptcy  and  County  Courts  have  the  same  juris- 
diction as  the  Court  of  Chancery  ;(j>i)  and  with  the  permission  of  the 
charity  commissioners,  to  be  applied  for  within  one  month  after  the  order 
is  made,(;i)  an  appeal  lies  to  the  Court  of  Chancery.(o) 

The  act  contains  a  special  provision  that  no  suit  or  ^proceed-  pi-.-rot:-, 
ing  not  being  an  application  "  in  any  suit  or  matter  actually  L  J 
pcndiiuj,"  shall  be  commenced  or  taken  without  an  authority  previously 
obtained  from  the  charity  commissioners.  The  construction  of  this 
clause  has  given  rise  to  considerable  difficulty.  It  was  at  first  held  that 
where  money  had  been  paid  into  court  under  the  Trustee  Belief  Act, 
10  &  11  Vict.  c.  9G,(^>)  or  under  a  railway  ac:t,(q)  no  such  suit  or  matter 
was  pending  as  to  obviate  the  necessity  of  previously  obtaining  the  con- 
currence of  the  charity  commissioners,  and  further,  that  if  a  scheme  had 
been  settled  in  the  same  charity  under  Sir  S.  Bomilly's  Act,  a  petition 
for  a  new  application  of  part  of  the  charity  funds  must  have  had  the 
previous  sanction  of  the  charity  commissioners.(7')  But  it  has  since  been 
decided  by  the  Court  of  Appeal,  that  in  such  cases  the  previous  sanction 
of  the  charity  commissioners  is  unnecessary.     The  object  of  the  provision 

(g)  Sect.  1.  (/<)  Sects.  9  to  14. 

[i)  Sect.  20.  {k)  Sect.  28. 

(l)  Sect.  30.  (w)  Sect.  32. 

(n)  Sect.  39.  (o)   Sect.  40. 

(jo)  Re  Markwell's  Legacy,  17  Be.iv.  618  ;  In  re  Skeetes,  1  Jur.  N.  S.  1031;  and 
see  Re  Bingley  School,  2  Drewry,  283. 

(q)  Re  London  Brighton  and  South  Coast  Railway  Company,  18  Beav.  608. 
{r)  Re  Ford's  Charity,  3  Drewry,  324. 


(320       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

was  merely  to  stop  the  enormous  abuses  in  reference  to  proceedings  in 
charity  matters,  and  the  words  suit  or  matter  actualli/  pending  mean 
pending  at  the  time  of  the  application,  and  not  at  the  passing  of  the 

act.(.s) 

The  act  contains  other  provisions(i')  of  a  preventive  rather  than  a 
remedial  kind.  Thus  by  the  16th  section,  the  board  has  power  to  enter- 
tain applications  for  their  opinion  or  advice,  and  persons  acting  in  accord- 
ance therewith  are  indemnified. 

By  the  48th  section,  lands  belonging  to  any  charity  may  be  vested  in 
the  secretary  of  the  board  as  a  corporation  sole  by  the  name  of  the  trea- 
surer of  public  charities ;  and  by  the  51st  section,  annuities,  stock, 
shares,  or  securities  held  for  any  charity  may  be  vested  in  the  official 
trustees  of  charitable  funds  ;  and  by  the  54th  and  following  sections,  the 
board  have  power  to  approve  provisionally  of  new  schemes  of  charities, 
varying  from  the  original  endowment,  but  which  are  to  be  submitted 
annually  to  parliament  for  its  ratification. 

r*-Qp-i  %  t'i'2  amendment  act,  IS  &  19  Vict.  c.  124,  by  the  15th  *sec- 
L  '  J  tion,  the  name  of  the  treasurer  of  public  charities  is  abolished, 
and  the  secretary  of  the  board  for  the  time  being  is  styled  the  official 
trustee  of  charity  lands  ;  and,  by  the  17tb  and  18th  section,  the  act  pro- 
vides for  the  appointment  of  the  official  trustees  of  charitable /2<7k/.s  to 
consist  of  the  secretary  of  the  board  for  the  time  being,  and  such  other 
persons  as  the  lord  chancellor  may  appoint  who  are  to  have  perpetual 
succession. 

II.  Of  the  extent  of  redress. 

Under  this  head  we  propose  to  inquire  only  within  what  period  of 
time  the  account  of  mesne  rents  and  profits  directed  against  the  trustee 
guilty  of  the  breach  of  trust  will  be  restricted. 

It  has  been  stated  in  a  former  page,  that  to  suits  for  relief  in  equity 
there  exists  but  three  bars  :  first,  a  statute  of  limitations  ;  secondly,  the 
presumption  of  an  act  which,  if  done,  is  an  answer  to  the  plaintiff's 
demand ;  and,  thirdly,  the  public  or  private  inconvenience  that  would 
arise  from  the  court's  interference. 

1.  It  is  clear  that  until  the  recent  statute  informations  against  trus- 
tees of  charities  (the  trust  being  not  constructive  but  direct)  were  not 
within  the  purview  of  the  Statutes  of  Limitations. (n\  It  was  at  one 
time,  indeed,  held,  that  although  the  statute  was  not  an  absolute  bar, 
yet  the  court  would  be  governed  by  the  same  period,  as  a  good  rule  how 
far  back  to  carry  the  account ;(«;)  but  afterwards  the  doctrine  was  denied, 
and  the  court  professed  to  pay  no  attention  whatever  to  the  limitation  of 
any  statute. (w)   But  now  charities  are  Avithin  the  operation  of  the  3  &  4 

{s)  Re  Lister's  Hospital,  6  De  Gex,  M.  &  G.  184. 

(t)  See  p.  504,  supra,  for  powers  of  leasing,  sale,  &c.,  given  by  the  Acts. 

{u)  Attorney-General  v.  Mayor  of  Exeter,  Jac.  448,  per  Sir  T.  Plumer ;  Attorney- 
General  V.  Brewers'  Company,  1  Mer.  498,  per  Sir  W.  Grant ;  see  Incorporated 
Society  v.  Richards,  1  Conn.  &  Laws.  58  ;  1  Dru.  &  War.  258. 

(v)  Love  V.  Bade,  Rep.  t.  Finch,  269  ;  2  Eq.  Ca.  Ab.  12,  pi.  20. 

(w)  Attorney-General  v.  Mayor  of  Exeter,  Attorney-General  v.  Brewers'  Com- 
pany, Incorporated  Society  v.  Richards,  ubi  supra. 


REMEDIES    OF    THE    CESTUI    QUE    TRUST.  021 

^Y.  4,  c.  27,  but  are  protected  by  the  saving  clause,  wliicli  excepts  cases 
of  an  express  trust. (a,) 

2.  It  was  observed  by  Sir.  T.  Plumer,  that  presum2^fw7i  also  did  not 
apply  to  the  case  of  trustee  and  cestui  que  trusf.{i/)  *nowever,  r^ygy-i 
although  the  court  cannot  presume  the  cestui  que  trust  to  have  L  J 
released  the  right  to  the  estate,  it  may,  in  certain  cases,  presume  the 
employment  of  the  funds  in  a  particular  manner  to  have  been  by  the 
direction  or  with  the  consent  of  the  cesttii  que  trust.  In  Attorney-Gene- 
ral V.  Scott,(2)  the  parishioners  had  purchased  an  advowson  by  subscrip- 
tion in  the  names  of  trustees  ;  and  by  a  decree  of  the  court  the  advowson 
had  been  vested  in  twenty-five  of  the  principal  inhabitants,  upon  trust  to 
elect  and  present  a  proper  clerk,  the  presentation  to  be  approved  by  cer- 
tain assistant  preachers.  The  trustees,  for  a  century,  had  been  in  the 
habit  of  electing  and  presenting  without  such  approbation  ;  and,  the  last 
election  being  disputed  as  irregular  for  want  of  that  formality,  Lord 
Hardwicke  said,  "  The  general  disusage  was  evidence  of  the  consent  of 
the  parishioners  to  lay  aside  that  part  of  the  constitution  as  useless  :  he 
would  presume  the  common  consent  of  the  trustees  and  parishioners  to 
lay  aside  the  custom,  as  the  court  would  presume  an  ancient  bye-law  to 
vary  the  constitution  of  a  corporation." 

3.  The  court  may  set  a  limit  to  the  account  on  the  ground  of  incon- 
venience ;  and  this  bar  applies  in  its  full  force  to  cases  of  charities.  <<  It 
is  the  constant  practice  of  courts  of  equity,"  said  Sir  Thomas  Plumer, 
"  to  discourage  stale  demands  ;  and  this  principle  has  often  been  acted 
upon  in  cases  of  charities.  When  there  has  been  a  long  period,  during 
which  a  party  has,  under  an  innocent  mistake,  misapplied  a  trust  fund 
from  the  laches  and  neglect  of  others,  that  is,  from  no  one  of  the  public 
setting  him  right,  and  when  the  accounts  have,  in  consequence,  become 
entangled,  the  court,  under  its  general  discretion,  considering  the  enor- 
mous expense  of  the  inquiries,  and  the  great  hardship  of  calling  upon 
representatives  to  refund  what  families,  acting  on  the  notion  of  its  being 
their  property,  have  spent,  has  been  in  the  habit,  while  giving  relief, 
of  fixing  a  period  to  the  account.  The  result  of  the  authorities  is,  that 
in  each  case  the  court  is  bound  to  be  guided  by  the  particular  circum- 
stances."(a) 

*In  Attorney-General  v.  The  Corporation  of  Stafi"ord,(?>)  the  rjcyog-i 
trustees  in  their  answer,  filed  in  1811,  had  furnished  accounts  of  L  -^ 
the  trust  estate  from  the  year  1791,  and  Lord  Gifi"ord  saw  no  inconveni- 
ence in  decreeing:  the  account  as  far  back  as  the  trustees  themselves  had 
stated  it,  but  refused  to  extend  it  farther. 

When  no  inconvenience  can  be  no  objected,  the  court  will  carry  back 
the  account  to  the  time  of  commencement  of  the  misapplication,  or  at 
least  up  to  the  period,  when  the  plaintiff's  title  to  the  fund  first  accrued. 

In    Attorney-General  v.   The    Mayor  of   Exeter,(c)   the    defendants 

(z)  See  ante,  749,  *750. 

(y)  Attorney-General  v.  Mayor  of  Exeter,  ubi  supra. 

(2)   1  Ves.  413  ;  and  see  In  re  Chertsey  Market,  6  Price,  280. 

(a)  Attorney-General  V.  Mayor  of  Exeter,  Jac.  448.  (6)   1  Russ.  547. 

(c)  Jac.  443  ;  2  Russ.  362. 


622       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

admitted  by  their  answer,  that  they  had  been  in  possession  of  the 
chanty  estate  for  the  last  200  years,  and  had  applied  considerable  parts 
of  the  rents  and  profits  to  the  purposes  of  the  charity,  and  that  the  resi- 
due of  the  rents  and  profits,  the  amounts  of  which  would  appear  from 
their  books,  they  had  always  been  ready  and  willing  to  apply;  and  Sir 
W.  Grant  decreed  an  account  of  the  rents  and  profits  without  any  limi- 
tation of  time.  Sir  T.  Plumer,  before  whom  the  cause  was  reheard, 
observed,  <'  Suppose  the  case  of  trustees  called  upon  to  account  for  the 
receipts  of  two  or  three  hundred  years,  who  admit  the  receipt,  and  say 
they  have  conscientiously  laid  up  the  money,  and  that  they  have  it  ready 
for  the  charity,  or  that  they  have  invested  it  in  the  funds  or  in  land, 
unmixed  with  other  money.  What  is  the  court  to  do  ?  Can  the  court 
give  to  the  trustees  a  part  of  the  money  or  land  which  they  acknowledge 
not  to  be  theirs?  It  is  admitted  to  belong  to  the  charity,  and  the 
charity  must  have  it.  There  is  no  difficulty  from  complicated  accounts  : 
all  the  topics  of  hardship  that  may  sometimes  be  urged  fail  of  applica- 
tion to  this  case."  And  his  honour  compelled  the  defendants  to  account 
for  the  rents  and  profits  for  the  whole  period  of  200  years. 

lu  Attorney-General  v.  The  Brewers'  Company,((/)  an  estate  had  been 
vested  in  that  company  upon  trust  for  the  repairs  of  the  Harrow  Road ; 
and,  by  an  act  of  19  Geo.  3,  the  proprietors  of  all  lands  chargeable  with 
r^-RQT  ^^®  ^^^^  repairs  were  directed  *to  pay  the  sums  which  should  be 
L  -I  so  charged  to  certain  trustees  appointed  by  the  act.  About 
1810,  an  information  was  filed  in  the  name  of  the  attorney-general,  the 
trustees  under  the  act  being  the  relators,  for  an  account  of  the  rents  and 
profits  which  the  company  had  not  applied.  Sir  W.  Grant  said,  "  It 
was  a  point  not  yet  decided,  from  what  period  a  corporate  body  should 
account  in  matters  of  trust;  for  to  give  the  account  only  from  six  years 
would  be  to  create  an  analogy  between  a  trust  account  and  a  common 
acco«nt.  However,  the  act  which  had  been  passed  was  not  meant  to 
have  a  retrospective  operation,  and  the  trustees  under  that  act  could  not 
say  they  had  a  right  to  the  accumulated  fund  from  any  antecedent 
period  ;  and  the  attorney-general,  suing  at  the  relation  of  the  trustees, 
could  have  only  such  an  account  as  the  trustees  themselves  would  be 
entitled  to ;"  and  therefore  his  honor  directed  the  account  to  be  taken 
from  the  date  of  the  act  of  parliament,  a  period  of  about  thirty  years. 

In  a  recent  suit  against  a  corporation  the  account  was  carried  back  to 
the  last  appointment  of  new  trustees  of  the  corporation,  a  period  short  of 
ten  years;  and  in  another  contemporaneous  suit  against  the  same  corpo- 
ration, but  where  the  legal  estate  was  not  in  trustees,  but  in  the  corpo- 
ration itself,  the  court  by  analogy,  and  for  want  of  another  fixed  point, 
ordered  the  account  to  commence  at  the  date  of  the  last  appointment  of 
new  trustees  in  the  first  suit.(c) 

In  every  suit,  the  limit  of  the  account  is  regulated  by  the  particular 
circumstances.  In  some  cases  it  is  carried  back  to  the  period  when  the 
corporation  was  first  informed  of  the  misapplication  (as  by  the  publication 
of  the  charity  commissioners'  report;)  in  other  cases  it  has  been  directed 


{d)  1  Mer.  495.  (e)  Attorney-General  v.  Newbury,  3  M.  k  K. 


C41 


REMEDIES    OF    THE    CESTUI    QUE    TRUST.  623 

from  the  time  of  filing  the  information,  and  in  others  from  the  date  of 
the  decree.(/) 

In  some  cases,  where  the  defendant  has  been  in  strictness  accountable 
for  a  very  long  period,  but,  if  the  right  were  enforced,  it  would  impose 
great  hardship,  it  has  been  referred  to  the  attorney-general,  as  represent- 
ing the  charity,  *to  certify  whether  under  the  circumstances  it  r^-qn-i 
might  not  be  proper  for  the  charity  to  accept  a  less  sum.(^)  L         J 

But  where  the  trustees  have  diverted  the  charity  funds  from  their 
proper  channel  through  mistake,  it  is  now  settled,  that  the  court  will  not 
call  back  any  disbursements  made  before  the  filing  of  the  information, (A) 
or  before  the  trustees  had  notice  that  the  propriety  of  such  application 
would  be  called  into  question. (i)  The  court  holds  a  strict  hand  over 
trustees  where  there  is  any  wilful  misemployment ;  but  where  the  court 
sees  nothing  but  mistake,  while  it  gives  directions  for  the  better  manage- 
ment in  future,  it  refuses  to  visit  with  punishment  what  has  been  trans- 
acted in  time  past.  To  carry  back  the  account  to  the  very  commence- 
ment of  the  misapplication  would  be  the  ruin  of  half  the  corporations  in 
the  kingdom  ;(/v)  besides  that  to  act  on  such  a  principle  would  be  a  great 
discouragement  to  undertake  the  ofiice  of  trustees  of  charities. (/) 

If  an  individual  make  an  annual  payment  for  a  particular  purpose  out 
of  the  profits  of  his  estate,  it  is  a  reasonable  presumption,  from  the  strong 
interest  which  he  has  to  resist  an  unfounded  demand,  that  he  has  inquired 
the  origin  of  the  claim,  and  he  is  therefore  fixed  with  implied  notice  of 
all  the  circumstances  that  attend  it ;  but  the  same  presumption  cannot 
be  applied  to  corporations,  because,  having  no  immediate  personal  interest 
in  the  application  of  the  profits  of  the  corporate  property,  they  may, 
without  the  imputation  *of  culpable  negligence,  adopt  and  follow  rj^yqi-i 
the  practice  of  their  predecessors. (m)  '-         -• 

When  the  charity  fund  has  been  administered  by  a  parish  and  misap- 
plied, as  a  parish  is  a  fluctuating  body,  and  the  present  rate-payers  ought 
not  to  pay  for  past  defaults,  no  retrospective  account  can  be  ordered. (h] 
In  the  East  Retford  case,(o)  before  Sir  J.  Leach,  the  court,  on  proof 
of  a  breach  of  trust  by  the  corporation,  directed  an  inquiry  by  the  master 
of  what  property  the  corporation  was  possessed  not  devoted  to  special 

(/)  See  Attorney-General  v.  Drapers'  Company,  6  Beav.  390. 

{g)  Attorney-General  v.  Mayor  of  Exeter,  2  Russ.  370;  and  see  Attorney-Gene- 
ral v.  Corporation  of  Carlisle,"  4  Sim.  279;  xUtoruey-General  v.  Brettingham,  3 
Beav.  91  ;  Attorne}--General  v.  Pretyman,  4  Beav.  462. 

{h)  Attorney-General  v.  Corporation  of  Exeter,  2  Russ.  45 ;  afSrmed  3  Russ. 
395  ;  Attorney-General  v.  Dean  of  Christchurch,  Jac.  474,  637  ;  S.  C.  2  Russ.  321  ; 
Attorney-General  v.  Rigby,  3  P.  W.  145;  Attorney-General  v.  Caius  College,  2 
Keen,  150  ;  Attorney-General  v.  Drapers'  Company,  4  Beav.  67  ;  Attorney-General 
V.  Christ's  Hospital,  ib.  73  ;  and  see  Attorney-General  v.  Newbury,  3  M.  &  K.  150. 

(i)  Attorney- General  v.  Burgesses  of  Eas't  Retford,  2  M.  &  K.  35,  see  37  ;  and 
see  Attorney-General  v.  Corporation  of  Berwick-upon-Tweed,  Taml.  239 ;  Attor- 
ney-General V.  Caius  College,  2  Keen,  150. 

{k)  Attorney-General  v.  Burgesses  of  Retford,  2  M.  &  K.  37,  per  Sir  J.  Leach. 

[l)  Attorney-General  v.  Corporation  of  Exeter,  2  Russ.  54,  per  Lord  Eldon. 

(m)  Attorney-General  v.  Burgesses  of  East  Retford,  2  M.  &  K.  38,  per  Sir  J. 
Leach. 

{n)  Ex  party  Fowlser,  1  J.  &  "VV.  70  ;   and  see  cases  cited  ib.  73,  note  (a). 

(o)  2  M.  &  K.  35. 


624       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

purposes,  with  the  view  that  compensation  might  be  made  to  the  charity 
by  an  immediate  sale  ;  but  the  case  upon  that  point  was  subsequently 
appealed  against  and  reversed,  as  contrary  to  principle,(p)  and  the  plain- 
tiflF  must  now  confine  himself  to  a  sequestration  in  the  ordinary  course. 


[*792] 


^CHAPTER    XXVII. 


MAXIMS   OP   EQUITY    FOR    SUSTAINING    THE    TRUE    CHARACTER    OF    THE 
TRUST  ESTATE  AGAINST  THE  LACHES  OR   TORT    OF   THE  TRUSTEE. 

Besides  the  several  rights  and  remedies  which  have  just  been  the 
subject  of  discussion,  the  court,  with  the  view  of  keeping  the  trust  estate 
in  its  regular  channel,  and  sustaining  its  proper  character,  whether  of 
realty  or  personalty ,  against  the  laches  or  other  mishckaviour  of  the 
trustee,  has  found  it  necessary  to  establish  two  maxims,  which  we  now 
proceed  to  examine  :  viz.,  first,  What  ought  to  be  done  shall  be  considered 
as  done  •,[a\  and,  secondly,  The  act  of  the  trustee  shall  not  alter  the  nature 
of  the  cestui' s  que  trust  estate,  (i) 

SECTION  I. 

WHAT    OUGHT  TO  BE  DONE  SHALL  BE  CONSIDERED  AS  DONE. 

''  The  forbearance  of  the  trustees,"  said  Sir  J.  Jekyll,  "  in  not  doing 
r*7QRT  ^^^^^  '^^  ^^^  their  office  to  have  done,  shall  in  no  sort  prejudice 
L  J  *the  cestuis  que  trust,  since  at  that  rate  it  would  be  in  the  power 
of  trustees,  either  by  doing  or  delaying  to  do  their  duty,  to  affect  the 
right  of  other  persons  ;  which  can  never  be  maintained.  Wherefore  the 
rule  in  such  cases  is,  that  what  ought  to  have  been  done  shall  be  taken 
as  done,  and  a  rule  so  powerful  it  is  as  to  alter  the  very  nature  of  things, 
to  make  money  land,  and,  on  the  contrary,  to  turn  land  into  money. 'Vc^ 
And  Lord  Macclesfield,  in  the  case  of  a  bequest  to  a  trustee  for  purchas- 
ing lauds,  observed,  "  If  the  purchase  had  been  made  it  must  have  gone 
to  the  heir,  but  if  the  trustee,  by  delaying  the  purchase,  might  alter  the 
right,  and  give  it  to  the  executors,  this  would  be  to  viake  it  the  icill  of 

(p)  3  M.  &  Cr.  484 ;  and  see  Attorney-General  v.  Newark-upon-Trent,  1  Hare, 
395. 

(a)  Walker  v.  Denne,  2  Ves.  jun.  182,  per  Lord  Loughborough  ;  Foone  v.  Blount, 
Cowp.  467,  per  Lord  Mansfield;  Holland  v.  Hughes,  16  Ves.  114,  per  Sir  W. 
Grant;  Gaskell  v.  Harman,  11  Ves.  507,  per  Lord  Eldon  ;  Stead  v.  Newdigate,  2 
Mer.  530,  per  Sir  W.  Grant;  Pulteney  v.  Darlington,  1  B.  C.  C.  237,  per  Lord 
Thurlow ;  Burgess  v.  Wheate,  1  Ed.  186,  per  Sir  T.  Clarke  ;  Lechmere  v.  Earl  of 
Carlisle,  3  P.  W^  215,  per  Sir  J.  Jekyll ;  Fitzgerald  v.  Jervoise,  5  Mad.  29,  per  Sir 
J.  Leach  ;  Earl  of  Buckingham  v.  Drury,  2  Ed.  65,  per  Lord  Hardwicke ;  Guidot 
V.  Guidot,  3  Atk.  256,  per  Lord  Hardwicke  ;  Crabtree  v.  Bramble,  lb.  681,  per 
eundem  ;  Trafford  v.  Boehm,  lb.  446,  per  etmdem;  &c. 

(b)  Philips  V.  Brydges,  3  Ves.  127,  per  Lord  Alvanley:  Earlom  v.  Saunders, 
Amb.  242,  per  Lord  Hardwicke  ;  Selby  v.  Alston,  3  Ves.  341,  per  Sir  R.  P.  Arden. 

(c)  Lechmere  v.  Earl  of  Carlisle,  3  P.  W.  215. 


MAXIMS    OF    EQUITY,    ETC.  625 

the  trustee,  and  not  the  will  of  the  testator,  lohich  icoiild  he  very  nnrea- 
sonahle  and  inconvenient." {cV^ 

Upon  these  grounds  it  is  in  equity  a  universal  rule,  tliat  money  direct- 
ed to  be  laid  out  in  tlie  purchase  of  land,  or  land  directed  to  be  sold 
and  turned  into  money,  shall  be  considered  as  that  species  of  property 
into  which  it  is  directed  to  be  converted ;  and  this,  in  whatever  manner 
the  direction  is  given,  whether  by  will,  by  way  of  contract,  by  marriage 
articles,  by  settlement,  or  otherwise,  and  whether  the  money  has  been 
actually  deposited  in  the  hands  of  trustees  for  the  purpose,  or  is  only 
covenanted  to  be  paid,  whether  the  land  has  been  actually  conveyed,  or 
is  only  agreed  to  be  conveyed. (e) 

Thus,  if  money  be  stipulated  to  be  laid  out  in  land  to  be  settled  on  a 
feme  covert  in  fee  or  in  tail,  the  husband  of  the/eme  is  entitled  to  his 
curtesy,  though  no  purchase  be  actually  made  in  the  lifetime  of  the  wife ; 
and  he  will  be  decreed  the  interest  of  the  money  until  a  purchase  can 
be  found ;  and  when  the  investment  has  been  made,  he  will  have  a  life 
estate  in  the  lands.  (/) 

Whether  under  similar  circumstances  a  widow  could,  before  the  late 
Dower  Act,  have  established  her  title  to  dower,  was  much  questioned. 
It  was  admitted  she  was  not  dowable  of  a  ^mere  trust  estate  ;(</)  r^yg^-i 
but,  where  money  was  to  be  converted  into  land,  and  the  interest  L  J 
was  only  prevented  from  being  legal  through  the  forbearance  of  the  trus- 
tee, it  was  contended  that  the  rights  of  parties  ought  not  to  be  varied  by 
the  neglect  of  the  person  who  is  merely  the  nominal  instrument. 

"  Marriage,"  said  Sir  J.  Jekyll,  "  is  in  its  nature  a  civil,  and  in  its 
celebration  a  sacred  contract,  and  the  obligation  is  a  consideration  mov- 
ing from  each  of  the  contracting  parties  to  the  other,  and  from  this 
obligation  arises  an  equity  to  the  wife  in  several  cases  without  any  pre- 
vious agreement,  as  to  make  good  a  defective  execution  of  a  power,  or 
defective  conveyance,  or  supply  the  defect  of  surrender  of  copyhold  estate  : 
in  all  which  the  court  relieves  the  wife,  and  makes  a  provision  for  her, 
where  it  is  not  unreasonable  or  injurious  to  others. "(A)  xVnd  he  after- 
wards added,  <<  I  cannot  but  wonder  how  it  ever  came  to  be  thought  that 
a  tenant  by  the  curtesy  was  entitled  to  relief  in  equity  more  or  fiirther 
than  a  dowress,  and  particularly  that  a  tenancy  by  the  curtesy  may  be 
of  a  trust  estate,  but  not  dower,  which  is  no  less  than  a  direct  opposition 
to  the  rule  and  reason  of  the  law,  which  allows  doicer  of  a  seisin  in 
law,  but  not  a  tenancy  hy  the  cxirtesy,  because  the  wife  cannot  gain  an 
actual  seisin,  but  the  husband  may;  which  reason  holds  in  a  trust  estate; 
for  the  wife  cannot  gain  or  compel  a  trustee  to  convey  the  legal  estate 
to  the  husband,  but  the  husband  himself  may;  therefore,  if  any  distinc- 
tion is  to  be  made,  dower,  one  would  think,  ought  to  be  preferred  to 
curtesy."(V)  If  the  wife,  therefore,  had  this  general  eijuity,  why  might 
she  not  come  into  chancery,  and  plead  the  rule  of  the  court  that  what 

(d)  Scudamore  v.  Scudamore,  Pr.  Ch.  543. 

(e)  Fletcher  v.  Ashburncr,  1  B.  C.  C.  499  ;  and  see  Wheldale  v.  Partridge,  5 
Ves.  396. 

(/)  Sw-eetapple  v.  Bindon,  2  Vern.  536;   Cunningham  v.  Moody,  1  Yes.  174; 

Dodson  V.  Hav,  3  B.  C.  C.  405.       {g}  Altered  by  the  late  Act,  3  &  4  W.  4,  c.  105. 

(/*)  Banks  v.  Sutton,  2  P.  W.  704.  (i)  Banks  v.  Sutton,  2  P.  W.  706. 


62G       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

ought  to  be  done  should  be  taken  as  done— that,  as  the  equitable  estate 
should  have  been  made  a  legal  estate,  it  ought  to  be  so  considered  in 
respect  of  dower? 

The  opinion  of  Lord  Hardwicke  was  on  more  than  one  occasion 
expressed  adversely  to  the  wife's  claim  ^[k)  but  there  were  several  authori- 
ties in  favour  of  the  dower.  (^) 

*Now,  by  a  late  act  (except  where  the  marriage  was  celebrat- 
[*795]  ^^  ^^  ^^  before  the  1st  day  of  January,  1834,)  the  legislature 
has  o-iven  dower  out  of  every  species  of  trust  estate  :  subject  to  be  defeat- 
ed, however,  by  any  declaration  of  intention  on  the  part  of  the  hus- 
band.(«i) 

Upon  the  principle  under  discussion  it  has  also  been  argued,  that  if 
money  be  articled,  or  directed,  to  be  laid  out  in  land  to  be  settled  on  a 
person  in  fee,  if  the  cestui  que  trust  die  without  heirs,  the  money  shall, 
as  land,  escheat  to  the  lord:  but  between  dower  and  escheat  there  is,  it 
is  submitted,  this  manifest  distinction,  that  a  widow  claims  through  her 
husband,  and  has  a  general  equity,  which  gives  her  locus  standi  in  court ; 
but  a  lord  by  escheat  comes  under  no  head  of  equity — is  entirely  a  stran- 
ger to  the  trust,  claiming  by  title  paramount  of  his  own.(«)  The  pre- 
tence for  his  claim  is,  that  the  operation  of  the  rule  so  absolutely  con- 
verts the  equitable  into  a  legal  estate,  that  all  the  incidents,  that  would 
have  belonged  to  the  legal,  must  be  considered  in  chancery  as  attached 
to  the  equitable ;  but  the  rule  was  not  meant  to  subvert  the  nature  of  a 
trust,  but  to  be  subservient  to  it — not  to  benefit  third  persons,  but  to 
protect  the  interest  of  parties  privy  to  the  trust.  And  of  this  opinion 
appears  to  have  been  Sir  T.  Clarke,  in  the  case  of  Burgess  v.  AVheate.(o) 
There  A.,  seised  ex  parte  paterna,  conveyed  the  estate  to  trustees  in 
trust  for  herself,  her  heirs,  and  assigns,  and  died  without  heir  of  the 
paternal  line,  but  leaving  an  heir  of  the  maternal ;  and  it  was  argued  in 
favour  of  the  heir  ex  p>arte  inalernd,  that,  as  the  cestui  que  trust  might  at 
any  time  have  called  upon  the  trustees  to  convey,  and  equity  looked  upon 
what  ought  to  have  been  done  as  done,  the  court  would  by  a  fiction  con- 
sider the  conveyance  of  the  legal  estate  as  actually  executed;  and  then, 
in  default  of  heirs  of  the  paternal  line,  the  lauds  would  descend  to  the 
heir  ex p)arte  maternd.  But  the  master  of  the  rolls  said,  "  Had  such  a 
r*7Qn  conveyance  been  executed,  it  would  have  *been  like  a  feoffment 
L  J  and  refeolfmeut,  and  have  made  A.  seised  of  a  new  use  ;  but,  as 
this  was  not  done,  the  consequences  insisted  on  will  not  follow,  for 
nothing  is  looked  upon  in  equity  as  done  but  what  o^ight  to  have  been 
done — not  what  might  have  been  done  ;  nor  icill  equity  consider  things 
in  that  light  in  favour  of  everyhody  ^  hut  only  of  those  ivho  had  a  right  to 
pray  it  might  he  done.      The  rule  is,  that  it  shall  he  either  between  the 

(k)  See  Cunningham  v.  Moodj.  1  Ves.  1*76  ;  Crabtree  v.  Bramble,  3  Atk.  687. 

(Z)  Fletcher  V.  Robinson,  cited  Dudley  v.  Dudley,  Pr.  Ch.  250;  S.  C.  stated 
from  R.  L.  in  Banks  v.  Sutton,  2  P.  W.  V09;  Otway  v.  Hudson,  2  Vern.  583; 
Banks  v.  Sutton,  2  P.  W.  700  ;  In  re  Lord  Lismore,  1  Hog.  177. 

{m)  See  p.  62G,  supra. 

(n)  Walker  V.  Denne,  2  Ves.  jun.  185,  per  Lord  Loughborough;  Henchman  v. 
Attornej'-General,  3  M.  &  K.  494,  per  Lord  Brougham. 

(o)  1  Ed.  177;  S.  C.  1  W.  Blackst.  Rep.  123. 


MAXIMS    OF    EQUITY,    ETC.  627 

parties  icJio  stipulate  tvliat  is  to  he  done,  or  tliose  who  stand  in  their 
place.  A.  never  prayed  a  conveyance,  and  one  cannot  tell  whether  she 
ever  would,  and  the  maternal  heir  is  not  to  be  considered  as  a  privy  in 
blood,  but  a  mere  stranger."(^)  As  the  lord  by  escheat  claims  not  in 
privity,  it  results  that,  according  to  Sir  T.  Clarke's  construction  of  the 
rule,  he  has  no  title  to  a  suhpana. 

As  money  to  be  laid  out  in  land  is  regarded  as  land,  it  could  not  before 
the  late  Wills  Act  have  been  devised  by  an  infant,  though  of  sufficient  age 
to  bequeath  personal  estate-;(g')  and,  for  the  same  reason,  it  will  pass  by 
the  cestui' s  que  trust  will  under  the  general  description  of  all  the  testator's 

lands,(r)  or  of  all  his  lands  in  the  county  of or  ehewhere,{s)  though 

in  the  latter  case  it  may  very  plausibly  be  contended,  that  the  testator 
could  not  have  referred  to  money,  but  must  have  alluded  to  something 
that  possessed  a  local  character. 

So  money  to  be  converted  into  land  is  bound  by  a  judgment,(^)  but 
was  never  accounted  personal  assets,  and  therefore  was  not,  until  the 
late  act,(«)  liable  to  the  payment  of  simple-contract  debts. (i') 

*So  a  gift  by  a  parent  (a  freeman  of  the  city  of  London)  to  a  r^'jn-j-i 
child  of  money  to  he  laid  out  in  land  was  considered  a  purchase  L  J 
by  the  father,  and  a  donation  of  the  estate,  and  consequently  under  the 
law  existing  before  the  recent  aet,(2«)  the  child  was  not  bound,  before 
receiving  his  orphanage  share,  to  bring  the  purchase  into  hotchpot. (.r) 

With  respect  to  the  heir  of  the  person  upon  whom  the  lands,  when 
purchased,  are  directed  or  agreed  to  be  settled,  it  is  necessary,  for  ascer- 
taining his  rights,  to  distinguish  between  the  cases  where  the  real  repre- 
sentative, claims  as  against  a  stranger,  and  where  he  claims  as  against 
the  executor  of  his  own  ancestor. 

It  appears  to  be  perfectly  established  that  the  heir  is  entitled  to  the 
money  as  land,  if  he  seek  to  enforce  his  equity  against  a  stranger.  Thus, 
1.  If  a  sum  of  money  be  heqiieathed  to  be  laid  out  in  a  purchase  of  lands 
to  be  settled  to  the  use  of  A.  and  his  heirs,  and  A.  die  before  a  purchase 
has  been  obtained,  the  money  is  the  property,  not  of  the  executor,  but  of 
the  heir  of  A.(^)     2.  If  on  the  marriage  of  A.  money  be  actually  depo- 

Cp)   1  Ed.  186. 

(g)  Earlom  v.  Saunders,  Amb.  241.  By  the  late  act,  1  W.  4,  and  1  V.  c.  26, 
an  infant  cannot  make  a  will  even  of  personal  estate. 

(r)  Guidot  v.  Guidot,  3  Atk.  256,  per  Lord  Hardwicke  ;  Rasliley-v.  Masters,  1 
Ves.  Jun.  201  ;  S.  C.  3  B.  C.  C.  99  ;  Green  v.  Stephens,  17  Ves.  77  ;  Biddulph  v. 
Biddulph,  12  Ves.  161. 

(«)  Lingen  v.  Sowray,  1  P.  W.  172  ;    Guidot  v.  Guidot,  3  Atk.  254. 

{!)  Frederick  v.  Aynscombe.  1  Atk.  392.  (w)  3  &  4  W.  4,  c.  104. 

(y)  Whitwick  v.  Jerrain,  cited  Baden  v.  Earl  of  Pembroke,  2  Vern.  58 ;  Law- 
rence V.  Beverley,  cited  lb.  55  ;  S.  0.  2  Keb.  841  ;  Fulham  v.  Jones,  cited  Pul- 
teney  v.  Darlington,  7  B.  P.  C.  550  ;  Foone  v.  Blount,  Cowp.  467,  per  Lord  Mans- 
field. 

(ic)   19  &  20  Vict.  c.  94. 

(x)  Hume  v.  Edwards,  3  Atk.  450 ;  Annand  v.  Honeywood,  1  Vern.  345. 

(y)  Scudamore  v.  Scudamore,  Pr.  Ch.  543.  Abbott  v.  Lee,  2  Vern.  284,  at  first 
sight  appears  contra,  but  it  seems  from  the  Registrar's  book  that  the  direction  for 
conversion  was  not  imperative,  but  to  be  at  the  discretion  of  the  testator's  execu- 
tors. Had  the  money  been  absolutely  converted  into  la?id,  the  ultimate  remainder 
by  failure  of  issue  of  the  surviving  daughter  would  have  resulted  to  the  executors 
of  the  testator,  but,  as  money  to  be  converted  and  settled  in  tail  upon  a  discretion 


G28  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

sited  in  the  hands  of  trustees,  either  by  A.  himself  or  by  a  stranger,  to 
be  laid  out  in  a  purchase  of  lands  to  be  settled  to  the  use  of  A.  for  life, 
remainder  to  his  wife  for  life,  remainder  to  the  issue  in  tail,  remainder 
to  A.  in  fee,  and  A.  die  without  issue,  his  heir,  and  not  his  executor  is 
entitled. (z)  3.  If  on  the  marriage  of  A.  there  be  a  covenmit  on  the  part 
of  B.  to  lay  out  money  in  a  purchase  of  lauds  to  the  above  uses,  and  A. 
die  without  issue,  his  heir  takes  the  benefit  of  the  covenaut.(rt) 

*But  if  the  heir  have  to  enforce  his  claim,  not  against  a 
L  '  J  stranger,  but  against  the  personal  representative  of  his  own  ances- 
tor, as  if  A.  on  his  marriage  covenant  to  lay  out  money  in  a  purchase  of 
lands  to  be  settled  to  the  use  of  himself  for  life,  remainder  to  his  wife 
for  life,  remainder  to  the  issue  in  tail,  remainder  to  his  own  right  heirs, 
in  this  instance  the  question  whether  the  heir  can  call  upon  the  executor 
for  the  money  must  depend  upon  this  further  distinction  : — 

1.  If  at  the  death  of  A.  there  be  an  equitable  interest  in  the  fund  out- 
standing in  another,  as  a  life  estate  in  the  wife,  or  an  estate  tail  in  the 
issue,  then  the  real  quality  of  the  money  is  sustained  and  continued  by 
that  right,  and  the  heir  of  A.  is  entitled  to  call  upon  A.'s  executor  ;(i) 
and  if  there  be  such  an  outstanding  claim  at  the  death  of  the  ancestor, 
the  circumstance  that  the  heir  institutes  his  suit  during  the  subsistence 
of  that  claim,  or  after  its  determination,  seems  to  be  perfectly  imma- 
terial, (fi) 

In  Walker  v.  Denne(rZ)  Lord  Loughborough  expressed  some  doubt 
upon  this  doctrine.  "  Is  there,"  he  said,  "  any  case  where  the  heir  has 
filed  a  bill  merely  as  such,  and  has  had  money  paid  to  him,  because  it 
was  directed  to  be  laid  out  in  land  ?  The  idea  is  commonly  entertained, 
but  there  are  doubts  about  it.  I  do  not  recollect  any  case  where  the 
heir  has  said,  The  money  ought  to  be  laid  out — all  the  particular  objects 
are  gone,  and  I  as  heir  claim  the  money  as  land  for  my  benefit.  Upon 
that  I  doubt  what  gives  the  heir  a  title  to  a  suhpoena  in  this  court : 
between  the  heir  and  personal  representative  their  rights  are  pure  legal 
rights  :  chance  decides  what  shall  be  real,  what  personal  :  neither  has  a 
scintilla  of  equity  to  make  the  property  that  which  it  is  not  in  fact." 
To  this  reasoning  of  Lord  Loughborough  it  may  be  replied,  that,  when  it 
is  said  there  is  no  equity  between  the  real  and  personal  representatives, 
the  meaning  is  no  more  than  this — that  what  is  real  estate  at  the  death 
r*7QQi  ^^  *^^^  ancestor  will  go  the  heir,  *and  what  is  personal  estate  at 
L  J  the  death  of  the  testator  will  go  to  the  executor ;  but,  for  the 
purpose  of  determining  what  is  real  and  what  is  personal  estate,  the  court 
is  guided,  not  by  the  legal  nature  of  the  property  at  the  death  of  the 

which  was  not  exercised,  it  belonged  to  the  administrators  of  the  legatee,  as  was 
decreed  by  the  court.     See  the  case  stated  from  Reg.  Lib.  App.  No.  IL 

(z)  Disher  v.  Disher,  1  P.  W.  204  ;  Chaplin  v.  Horner,  lb.  483  ;  Edwards  v. 
Countess  of  Warwick,  2  P.  W.  1 71  ;  and  see  Lechmere  v.  Lechmere,  Cas.  t.  Talb.  90. 

(a)  Knights  v.  Atkyns,  2  Vern.  20. 

(b)  Kettleby  v.  Atwood,  1  Vern.  298;  re-heard,  lb.  471  ;  Lancy  v.  Fairechild, 
2  Vern.  101  ;  Chaplin  v.  Horner,  1  P.  W.  483  ;  Lechmere  v.  Earl  of  Carlisle,  3  P. 
W.  211  ;  affirmed,  Cas.  t.  Talbot,  89  ;  Oldham  v.  Hughes,  2  Atk.  452. 

(c)  See  Chaplin  v.  Horner,  1  P.  W.  483  ;  Lechmere  v.  Lechmere,  Cas.  t.  Talb.  80. 

(d)  2  Ves.  jun.  175,  17G,  183  ;  and  see  Oxenden  v.  Lord  Compton,  lb.  70  ;  Lord 
Compton  V.  Oxenden,  lb.  265. 


MAXIMS    OF    EQUITY,    ETC.  629 

owner,  but,  as  appears  in  numerous  instances,  by  the  stamp  and  character 
impressed  upon  it  in  consideration  of  a  court  of  equity.  Thus  if  a  mort- 
gagee in  fee  die,  the  mortgage  being  regarded  as  a  mere  security  for  part 
of  the  mortgagee's  personal  estate,  the  executor  may  call  upon  the  heir 
for  a  conveyance  of  the  land.  On  the  other  hand,  if  the  mortgagor  die, 
the  heir  of  the  mortgagor  may  call  on  the  executor  to  discharge  the  incum- 
brance out  of  the  personal  assets.  So  if  a  person  contract  for  the  sale  of 
an  estate,  and  die  before  the  completion  of  the  sale,  the  legal  fee  descends 
upon  the  heir,  but  the  purchase-money  passes  to  the  executor ;  and,  on 
the  other  hand,  if  a  person  contract  for  the  purchase  of  an  estate,  and 
die,  the  executor  must  pay  the  money,  but  the  heir  is  entitled  to  the 
purchase.  Thus,  in  the  words  of  Lord  Talbot,  "  where  the  dispute  is 
between  the  two  representatives  of  the  deceased,  the  one  of  his  real,  the 
other  of  his  personal  estate,  the  heir's  being  but  a  volunteer  in  regard  to 
his  ancestor  will  not  exclude  him  from  the  aid  of  the  court,  for  though 
the  question  is  between  two  volunteers,  the  court  will  determine  which 
way  the  right  is,  and  will  decree  accordingly. "(t)  "I  am  disposed," 
said  Lord  Eldon,  "  to  say,  notwithstanding  the  opinion  of  Lord  Kosslyn 
in  Walker  V.  Denne,  and  some  other  modern  authorities,  that  if  the  instru- 
ment be  taken  to  impress  a  fund  with  real  qualities  immediately  upon  the 
execution,  in  the  question  between  the  heir  and  executor,  the  money 
being  once  clearly  and  plainly  impressed  with  real  uses  as  land,  and  one 
of  those  uses  being  for  the  benefit  of  the  heir,  it  will  remain  for  his  bene- 
fit, and  it  is  not  correct  to  say  the  court  does  not  interpose  between  volun- 
teers, if  they  give  to  the  executor  that  money  which  the  instrument  has 
given  to  the  heir."(/)  And  Sir  W.  Grant  to  the  same  effect  observed, 
"  There  is  no  weight  in  the  circumstance  that  the  property  is  found  in 
the  shape  of  money  or  land,  *for  the  character  is  to  be/onnd  in  r^gQQ-j 
the  deed.  The  opinion  of  Lord  Rosslyn  that  property  was  to  be  L  J 
taken  as  it  happened  to  be  at  the  death  of  the  party  from  whom  the  rep- 
resentatives claimed,  was  much  doubted  by  Lord  Eldon,  who  held,  in 
which  Ii^erfecthj  concur,  it  must  be  considered  as  being  in  the  state  in 
which  it  ought  to  he.  Lord  Rosslyn's  rule  was  new,  and  not  according 
to  prior  cases. "(//) 

2.  But  if  A.  die,  leaving  neither  wife  nor  issue,  so  that,  to  use  the 
technical  expression,  the  money  is  "at  home,"  that  is,  A.  at  the  time  of 
his  death  is  the  absolute  and  exclusive  owner,  and  there  is  no  outstanding 
right  in  another  person,  in  this  case  the  real  quality  of  the  money  has 
become  merged  and  extinguished,  and  on  the  death  of  A.  the  heir  has  no 
equity  to  call  upon  the  executor.  To  keep  on  foot  the  notional  conver- 
sion of  money  into  land,  it  is  evident  there  must  be  a  right  in  some  one 
to  insist  upon  the  actual  conversion;  but  if  A.  be  in  possession  of  20,000^. 
upon  trust  to  lay  out  in  a  purchase  of  lands  to  be  settled  to  the  use  of 
himself  and  his  heirs,  the  right  and  the  thing  both  centring  in  the  same 
person,  there  is  nobody  to  sue,  and  it  follows  the  action  is  extinguished. (A) 

(e)  Lechraere  v.  Lecbmere,  Cas.  t.  Talb.  00. 

(/)  Wheldale  v.  Partridge,  8  Yes.  235. 

{g)  Thornton  v.  Hawley,  10  Yes.  138  ;  Kirkman  v.  Miles,  13  Yes.  339. 

(/*)  See  Pulteney  v.  Darlington,  1  B.  C.  C.  237. 


630  LE^YIX    ON    THE    LAW    OF    TRUSTS,    ETC. 

The  decision  in  the  much  litigated  case  of  Chichester  v.  BickerstaflP,(i) 
amounted  probably  to  no  more'than  this.  On  the  marriage  of  Sir  J. 
Chichester  with  the  daughter  of  Sir  C.  Bickerstaff,  the  latter  agreed  to 
pay  1500?.  by  way  of  portion,  which,  together  with  1500?.  more  to  be 
advanced  by  Sir  John  Chichester  within  three  years  after  the  marriage, 
was  to  be  invested  in  lands  to  be  settled  on  Sir  John  for  life,  remainder 
to  his  wife  for  life,  remainder  to  the  issue  in  tail,  remainder  to  Sir  John 
in  fee.  Sir  John  and  his  lady,  within  one  year  after  the  marriage,  both 
died  without  issue,  the  husband  having  survived.  Sir  John  by  his  will 
made  Sir  C.  BicJcerstaff  his  executor,  and  bequeathed  the  residue  of  his 
personal  estate,  after  payment  of  his  debts,  &c.,  to  Frances  Chichester, 
his  sister.  The  heir-at-law  of  Sir  John  brought  his  bill  against  Sir 
Charles  to  *compel  him  to  pay  the  1500?.,  insisting  that  by  virtue 
L  J  of  the  marriage  articles  the  money  ought  to  be  looked  upon  as 
land,  and  therefore  belonged  to  him  as  heir.  Lord  Somers  said,  "  This 
money,  though  once  bound  by  the  articles,  yet  when  the  wife  died  with- 
out issue  became  free  again,  and  was  under  the  power  and  dispose  of  Sir 
John,  as  the  land  would  likewise  have  been  in  case  a  purchase  had  been 
made  pursuant  to  the  articles,  and  therefore  would  have  been  assets  to  a 
creditor,  and  must  have  gone  to  the  executor  or  administrator  of  Sir 
John  ;  and  this  is  much  stronger  where  there  is  a  residuary  legatee  ;" 
and  therefore  dismissed  the  bill.  Then  follows  what  is  apparently  the 
note  of  the  reporter,  viz.  that  '<  money  shall  in  many  cases  be  considered 
as  land  when  bound  by  articles  in  order  to  a  purchase,  but  whilst  it 
remains  still  money,  and  no  purchase  made,  the  same  shall  be  deemed  as 
part  of  the  personal  estate  of  such  person,  who  might  have  aliened  the 
land  in  case  a  purchase  had  been  made." 

In  this  case  it  has  been  commonly,  but  surely  without  reason  supposed, 
that  the  suit  of  the  plaintiff  was  for  the  1500?.  which  Sir  Charles  had 
articled  to  pay,  and  in  consequence  of  this  misconception,  the  authority 
of  the  decision  tas  repeatedly  been  called  into  question.  Thus  Sir  J. 
Jekyll,  overlooking  the  very  material  circumstance  that  Sir  Charles  had 
been  appointed  the  executor  of  the  testator,  observes,  "  It  is  remarkable 
with  respect  to  this  case,  that  the  wife  died  within  three  years  after  the 
marriage,  during  which  period  the  purchase  was  to  be  made,  so  that  the 
time  was  not  come  within  which  the  money  was  to  be  laid  out ;  and  till 
then  it  continued  money  ;  and  possibly  the  court  had  some  evidence  to 
induce  them  to  believe,  that  Sir  John  Chichester  looked  on  the  money  as 
personal  estate;  and  if  this  does  not  distinguish  it  from  other  cases,  I 
doubt,  in  opposition  to  so  many  decrees,  the  resolution  here  given  icould 
hardly  he  maintainahle ." [h)  And  Lord  Talbot  was  apparently  under 
the  same  misapprehension,  for  he  observes,  "Had  the  money  in  the  case 
before  me  been  deposited  in  the  hands  of  trustees,  it  must  have  been 
looked  upon  as  real  estate,  and  the  heir  have  been  entitled.  This  seems 
r*Sn91  ^^  '^^'^  granted,  and  no  authority  against  it  but  what  has  been 
L  "^J  collected  from  the  case  of  Chichester  v.  BickerstaflP.  It  is 
probable  the  court  went  upon  some  reason,  which  induced  it  to  think  that 

(0  2  Vern.  295;  S.  C.  cited  Pulteney  v.  Darlington,  f  B.  P.  C.  554. 
[k)  Lechmere  v.  Carlisle,  3  P.  W.  221. 


MAXIMS    OF    EQUITY,    ETC.  631 

Sir  John  looked  upon  that  money  as  personal  estate,  for  otherwise  the 
autliority  of  that  case  is  not  to  be  maintained,  leing  contrary  to  all 
former  reso/nfions."(J)  But  Lord  Thurlow  viewed  the  case  in  a  different 
'light,  and  evidently  considered  the  1500/.  sought  hy  the  hill  of  the  plaintiff 
to°be  the  1500/.  articled  to  be  paid  by  the  testator  himself,  and  so  payable 
out  of  his  assets  in  the  hands  of  Sir  John  Bickcrstatf,  his  executor. 
"  Where,"  said  his  lordship,  "  a  sum  of  money  is  in  the  hands  of  one 
without  any  other  use  hut  for  himself,  it  will  be  money,  and  the  heir 
cannot  claim,  like  the  case  of  Chichester  v.  Bichu-staff,  against  which  I 
think  there  is  no  judgment,  though  there  are  a  number  of  opinions.  I 
know  no  better  authority  than  that  case."(m) 

The  registrar's  book  has  been  searched,  but  no  decree  can  be  found. 
It  appears,  however,  from  a  motion  in  the  cause  for  dissolving  an  injunc- 
tion, that  the  circumstances  of  the  case  were  as  follows : — Sir  Charles 
Bickerstaff  had  brought  an  action  at  law  against  the  plaintiff,  and  had 
obtained  judgment  for  a  certain  sum  upon  a  balance  of  accounts.  Upon 
this  the  plaintiff  instituted  a  suit  in  equity  for  staying  the  proceedings 
at  law,  alleging,  that  Sir  Charles  stood  indebted  to  him  in  the  sum  of 
3000/.,  to  which  the  plaintiff  was  entitled  as  heir-at-law  of  Sir  John, 
under  Sir  John's  marriage  articles.  It  was  ordered  by  the  court  that 
judgment  should  be  entered  up,  but  execution  should  be  stayed  till  the 
cause  should  be  heard  the  Easter  term  following.  As  Vernon,  the 
reporter,  speaks  only  of  one  sum  of  1500/.,  to  which  the  executor  was 
declared  entitled,  it  is  probable  the  other  sum  was  adjudged  to  the  heir, 
a  decision  that  would  in  every  respect  be  conformable  to  principle ;  for 
while  the  1500/.,  covenanted  to  be  paid  by  Sir  John  himself  was,  by  the 
death  of  his  wife  without  issue  in  his  lifetime,  "  at  home,"  and  therefore 
set  free  from  the  articles,  the  other  sum  of  1500/.  which  was  covenanted 
to  be  paid  by  Sir  Charles,  was  outstanding  in  *the  hands  of  Sir  r*gQ3-i 
Charles  as  trustee,  and  would  therefore  retain  the  character  of  L  -I 
real  estate  until  some  act  by  Sir  John  to  remove  that  impression. 

To  the  principle  under  consideration  must  be  referred  the  case  of  Pul- 
teney  v.  Darlington. («)  Henry  Guy  the  testator  appointed  Lord  Bath, 
Taylour,  and  Lake,  his  executors,  and  devised  to  them,  their  heirs,  and 
assigns,  all  his  estates  at  Earl's  Court,  and  certain  freeholds  and  copy- 
holds at  Muswell  Hill,  upon  trust  to  sell,  and  directed  that,  after 
payment  of  his  debts  and  legacies,  all  such  moneys  or  other  personal 
estate  as  should  remain  in  the  hands  of  the  executors,  or  be  raised  by  sale 
of  the  devised  estates,  should  be  laid  out  in  the  purchase  of  lands  to  be 
settled  to  the  use  of  Lord  ]3ath  for  life,  remainder  to  the  first  and  other 
sons  in  tail,  remainder  to  Greneral  Pulteney  for  life,  remainder  to  tlie  first 
and  other  sons  in  tail,  remainder  to  Daniel  Pulteney  for  life,  remainder 
to  the  first  and  other  sons  in  tail,  with  a  remainder  in  fee  to  the  father 
of  Lord  Bath,  which  afterwards  became  vested  in  Lord  Bath  himself. 
The  testator  died  in  1710.  Daniel  died  without  issue  in  the  lifetime  of 
Lord  Bath  and  General  Pulteney.  Lord  Bath  had  issue,  a  son,  who 
died,  without  having  disturbed  the  settlement,  in   the   lifetime   of  his 

(l)  Lechmerc  v.  Lecbmere,  Cas.  t.  Talb.  90. 

(m)  Pulteney  v.  Darlington,  1.  B.  C.  C.  238.  (n)   1  B.  C.  C.  223. 


032  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC 

father.  General  Pulteney  never  had  any  issue.  Lord  Bath,  who  acted 
in  the  executorship,  retained  in  his  hands  the  sum  of  23,488?.  upon  the 
trusts  of  the  will ;  and,  after  the  decease  of  Daniel  and  of  his  own  son, 
by  his  will,  bearing  date  in  1763,  devised  all  his  real  and  personal  estate 
to  General  Pulteney  and  appointed  him  executor;  so  that,  whether  the  sum 
of  23  488/.  was  to  be  regarded  as  the  real  or  as  the  personal  estate  of  Lord 
Bath,  uiraque  via  data  it  became  vested  in  General  Pulteney  under  this 
devise  and  bequest.  General  Pulteney  proved  the  will,  took  possession  of 
the  estates,  and  transferred  the  securities  upon  which  the  23,488/.  was  in 
vested  into  his  own  name.  By  his  will  bearing  date  in  1767,  General  Pul- 
teney devised  all  his  estates  in  Middlesex,  Salop,  and  York,  to  certain  uses, 
and  o-ave  all  his  money,  securities,  goods,  chattels,  and  personal  estate, 
to  his  executors  upon  certain  trusts ;  so  that,  under  *General 
[  804]  pui^gjjgy'g  ^\\\^  if  the  23,488/.  was,  under  the  circumstances,  to 
be  taken  as  land,  then,  for  want  of  a  general  devise,  it  had  descended 
upon  the  plaintiff  as  General  Pulteney's  heir;  but  if  it  was  to  be  regarded 
as  personalty,  it  was  included  in  the  bequest  of  the  General's  personal  estate. 
Lord  Bathurst,  before  whom  the  cause  was  first  heard,  conceived  the 
heir  had  no  title,  and  dismissed  the  bill.  It  was  afterwards  reheard 
before  Lord  Thurlow,  who  affirmed  the  decree  upon  two  grounds ;  first, 
that  the  money  was  "  at  home,"  the  possibility  of  issue  having,  on  the 
death  of  General  Pulteney,  the  surviving  tenant  for  life,  become  extinct, 
and  therefore,  at  his  decease,  there  was  no  claim  upon  the  fund  outstanding 
in  any  other  person  ;  and,  secondly,  that  General  Pulteney  had  manifested 
a  disposition  to  destroy  the  impression  of  real  estate,  and  continue  the 
fund  as  money.  His  lordship  said,  "  If  there  be  no  legal  or  equitable 
title  out  against  the  party  who  is  in  possession  of  the  fund,  there  the 
rule,  that  when  the  right  and  the  thing  centre  in  one  and  the  same  person 
the  action  is  extinguished,  applies,  and  the  heir  cannot  say  there  was  a 
use  for  him  ;"  and  then,  after  commenting  upon  the  numerous  decisions 
upon  the  subject,  his  lordship  continued  :  "  the  use  that  I  make  of  these 
cases,  notwithstanding  the  dicta  they  contain,  is  this,  that  where  a  sum 
of  money  is  in  the  hands  of  one  without  any  other  use  but  for  himself,  it 
will  be  money,  and  the  heir  cannot  claim.  But  whether  that  is  clearly 
so  or  not,  circumstances  of  demeanor  in  the  person,  even  though  slight, 
will  be  sufficient  to  decide  it :  a  very  little  would  do  :  receiving  it  from 
the  trustees  there  is  no  doubt  would  be  sufficient :  Lord  Bath  did  receive 
it — he  had  it  in  his  hands.  Suppose  he  had  it  by  way  of  covenant ; 
otherwise  where  would  there  be  an  end  ?  If  he  kept  it  subject  to  a 
covenant  to  lay  it  out  for  fifty  years,  should  the  heir  come  for  it  at  the 
end  of  that  term  ?  It  would  lead  to  infinite  inconveniences."  The 
decree  was  afterwards  affirmed  in  the  House  of  Lords,  and  upon  the 
ground,  as  stated  by  Lord  Eldon,  that  the  money  was  "  at  home."(o) 

Of  course  the  money  will  be  "■  at  home"  where  the  person  absolutely 
r*SnfS1  ^"tit^'^*^  to  the  fund  receives  it  from  the  trustee  the  ^depositary 
L  J  of  it,  and  that  whether  the  payment  is  made  with  the  sanction  of 
the  court,  or  by  the  voluntary  act  of  the  trustee  himself.(p) 

(o)  Whcldale  v.  Partridge,  8  Ves.  235. 

Ip)  See  Pulteney  v.  Darlington.  1  B.  C.  C.  236  ;  Bowes  v.  Earl  of  Shaftesbury, 
5  B.  P.  C.  144;  Chaplin  v.  Horner,  1  P.  W.  483,  as  to  the  1350Z. 


MAXIMS    OF    EQUITY,    ETC.  G33 

If  a  testator  bequeatli  a  sum  of  money  to  be  laid  out  in  lands,  to  be 
settled  to  certain  uses,  with  the  ultimate  remainder  to  his  own  riyht 
heirs,  and  the  prior  limitations  fail,  the  heir  may  file  a  bill  against  the 
executor  of  his  ancestor,  and  though  the  only  person  entitled,  may  claim 
to  have  the  benefit  of  the  conversion. 

Lord  Loughborough,  in  Walker  v.  Denne,(^y)  appears  to  have  doubted 
upon  this  point,  and  observed,  that  in  general  a  limitation  to  the  right 
heirs  of  the  testator  was  an  indication  that  he  had  no  will  concerning  it, 
and  meant  that  he  did  not  know  what  to  do  with  it :  but  his  lordship's 
doctrines  have,  as  before  remarked,  been  repeatedly  disapproved,  and 
the  very  point  was  decided  by  Lord  Northington  in  the  case  of  Robinson 
v.   Knight.(r) 

Lord  Macclesfield  advanced  the  position,  that  if  a  person  voluntarily/ 
and  loitJiout  consideration  covenanted  to  lay  out  money  in  a  purchase 
of  land  to  be  settled  on  himself  and  his  heirs,  the  court  would  compel 
the  execution  of  such  a  contract,  though  merely  voluntary  j  for  in  all 
cases,  where  it  was  a  measuring  cast  between  an  executor  and  an  heir, 
the  latter  should  in  equity  have  the  preference. (s)  But  the  position  that 
the  heir  is  more  favoured  than  the  executor,  though  often  repeated, (^) 
does  not  appear  to  be  founded  on  any  intelligible  principle.  The  notion 
may  have  arisen  from  the  leaning  of  the  court  towards  the  heir  in  res- 
pect of  lands  of  which  the  ancestor  loas  seised.  And  as  to  the  applica- 
tion of  the  rule,  that  what  ought  to  be  done  shall  be  looked  upon  as 
done,  the  heir  in  the  case  put  by  Lord  Macclesfield  cannot,  it  seems, 
take  advantage  of  it;  for  the  *court  will  not  act  upon  the  rule  j.^,n^„^ 
universally  but  only  where  the  agreement  is  founded  on  a  good  L  J 
or  valuable  consideration. («)  The  opinion  expressed  by  Lord  Maccles- 
field may  therefore  justly  be  doubted. 

In  the  preceding  observations  it  has  of  course  been  assumed,  that  the 
direction  or  agreement  for  conversion  is  by  the  terms  of  the  instrument 
made  absolute  and  imperative ;  for,  where  a  mere  option  is  given,  the 
original  character  of  the  property  continues,  until  the  discretion  has  been 
exercised,  and  the  conversion  actually  effected  ;  as,  if  the  direction  or 
agreement  be  to  lay  out  money  in  *' lands  or  securities, "(i>)  in  "  freeholds 
or  leaseholds,"^?©)  or  if  by  any  other  mode  of  expression  an  intention  be 
manifested  of  not  converting  the  property  at  all  events. (x) 

But  where  the  uses  declared  are  exclusiveli/  applicahle  to  real  estate, 
the  direction  or  agreement  will  be  construed  to  be  imperative,  though 
the  direction  or  agreement  be  to  lay  out  the  money  in  "  freeholds,  lease- 

(q)  2  Ves.jun.  IVS-HT.  (r)  2  Ed.  155. 

(s)  Edwards  v.  Countess  of  Warwick,  2  P.  W.  176;  and  see  Lcchmere  v.  Lech- 
mere,  Oas.  t.  Talb.  90,  91. 

(t)  See  Crabtree  v.  Bramble,  3  Atk.  689  ;  Scudamore  v.  Scudamore,  Pr.  Ch. 
544  ;  Haytor  v.  Rod,  1  P.  W.  364  ;   Wilson  v.  Beddard,  12  Sim.  32. 

(u)  See  Crabtree  v.  Bramble,  3  Atk.  687  ;  Frederick  v.  Fredrick,  1  P.  W.  713. 

(v)  Curling  v.  May,  cited  Guidot  v.  Guidot,  3  Atk.  255 ;  Amler  v.  Amler,  3  Ves. 
583;  and  see  Van  v.  Barnett,  19  Ves.  102. 

(w)  Walker  v.  Denne,  2  Ves.jun.  170;  Davies  v.  Goodhew,  6  Sim.  585. 

(x)  Wheldale  v.  Partridge,  5  Ves.  388  ;  S.  C.  8  Ves.  227  ;  and  see  Abbott  v.  Lee, 
2  Vern.  284;  Davies  v.  Goodhew,  6  Sim.  585  ;    Policy  v.  Seymour,  2  Y.  &  C.  708. 

April,  1858.— 41 


604       LEWIN  ON  THE  LA^n^  OF  TRUSTS,  ETC. 

liolds,  or  copy'holds"{y)  or  the  instrument  contain  an  authority  to  invest 
the  money  upon  securities  until  a  purchase  can  be  found,(z)  or,  the  fund 
beino;  already  out  upon  security,  a  power  is  inserted  to  call  it  in,  and  lay 
it  out  upon  other  securities,(a)  or  even  though  the  direction  or  agreement 
be  to  lay  out  the  money  on  lands  or  securities,  the  intention  in  the  last 
case  apparently  being,  that  the  money  shall  be  invested  upon  security 
until  a  suitable  purchase  can  be  found,  and  that  the  interest  and  divi- 
dends in  the  mean  time  shall  be  paid  to  the  person  who  would  be  entitled 
to  the  rents. (&) 

*And,  where  the  uses  are  thus  exclusively  applicable  to  real 
L'^'^'J  estate,  the  direction  or  agreement  will  be  regarded  as  impera- 
tive, though  the  settlement  require  the  purchase  to  be  made  at  the  re- 
quest of  a  party,(c)  for  the  insertion  of  such  a  clause  has  been  taken  to 
mean,  not  that  a  conversion  may  not  be  effected  hefore,  but  that  it  shall 
certainly  be  effected  after  request. (rZ)  And  the  construction  is  the  same, 
though  the  purchase  be  directed  to  be  made  with  a  person's  consent  and 
approbation  ;{e)  for  upon  a  convenient  purchase  being  proposed,  the 
court,  said  Sir  J.  Jekyll,  will  take  upon  itself  to  judge  thereof,  and, 
without  some  reasonable  objection  made,  will  order  the  money  to  be 
laid  out  in  it,  so  that  such  a  proviso  seems  to  be  immaterial,  and  as  if 
omitted. (/)  But  of  course  the  instrument  may  be  so  strongly  expressed 
as  to  show  the  intention  of  the  parties,  that  the  request  or  consent  of  a 
particular  person  should  be  a  substantial  ingredient,  and  that  no  conver- 
sion should  take  place  unless  it  were  given. (^) 

As  money  to  be  converted  into  land  is  considered  as  land,  so  land  to 
be  converted  into  money  is,  upon  the  same  principle,  invested  with  all 
the  properties  of  money.  Thus,  if  an  estate  be  directed  or  agreed  to  be 
sold,  and  the  proceeds  be  made  payable  to  A.,  the  property,  though  un- 
converted at  A.'s  decease,  will  pass  by  a  general  bequest  of  all  his  per- 
sonal estate  ;(A)  and,  if  A.  die  intestate,  will  vest  in  his  personal  repre- 
sentative,(?)  but  will  not  be  liable  to  probate  duty.(7i) 

(y)  Hereford  v.  Ravenhill,  5  Beav.  51. 

(z)  Edwards  v.  Couatess  of  Warwick,  2  P.  W.  ITI  ;  Earlom  v.  Saunders,  Amb. 
241 ;  and  see  Davies  v.  Goodhew,  6  Sim.  585. 

(a)  Thornton  v.  Hawley,  10  Yes.  129;  andsee  Triquet  v.  Thorntonj  13  Yes.  345. 

{b)  Earlom  v.  Saunders,  Amb.  241  ;  Cowley  v.  Hartstonge,  1  Dow.  361:  Arnold 
T.  Johnson,  1  Yes.  169  ;  Cookson  v.  Reay,  5  Beav.  22  ;   12  CI.  &  Fin.  121.' 

(c)  Thornton  v.  Hawley,  10  Yes.  129  ;  Johnson  v.  Arnold,  1  Yes.  169. 

{d)  lb.  137  ;  but  see  Stead  v.  Xewdigate,  2  Mer.  530. 

(e)  Thornton  v.  Hawley,  ubi  supra.  In  Symonsv.  Butter,  2  Vern.  227,  Hutchins 
was  right  according  to  Sir  J.  Jekyll,  Lechmere  v.  Earl  of  Carlisle,  3  P.  "W.  220, 
and  Lord  Thurlow,  Pulteney  v.  Darlington,  1  B.  C.  C.  238  ;  but  see  Stead  v.  New- 
digate,  2  Mer.  530. 

(/)  Lechmere  v.  Earl  of  Carlisle,  3  P.  "W.  220,  per  Sir  J.  Jekyll. 

[g)  Davies  v.  Goodhew,  6  Sim.  585 ;  and  see  Re  Taylor's  Trust,  9  Hare,  596. 

(A)  Stead  y.  Newdigate,  2  Mer.  521. 

[i]  Ashby  v.  Palmer,  1  Mer.  296 ;  Biggs  v.  Andrews,  5  Sim.  424 ;  Burton  v. 
Hodsoll,  2  Sim.  24 ;  Grieyeson  v.  Kirsopp,  2  Keen,  653  ;  Griffith  v.  Ricketts,  7 
Hare,  299;  Hardey  v.  Hawkshaw,  12  Beav.  552. 

{k)  Matson  v.  Swift,  8  Beav.  368 ;  Custance  v.  Bradshaw,  4  Hare,  324  ;  nor 
would  such  proceeds  be  forfeitable  to  the  crown  as  personalty  until  the  period  for 
conversion  arrives.     Thompson's  Trusts,  22  Beav.  506. 


MAXIMS    OF    EQUITY,    ETC.  635 

So,  if  the  proceeds  be  given  to  an  alien,  be  is  capable  of  taking  for  bis 
own  benefit,  and  tbe  crown  is  excluded. (^) 

*And  if  leasebolds  be  stamped  witb  a  trust  for  conversion,  and  r^orvQ-i 
tbe  proceeds  be  given  to  A.,  and  A.  dies  baving  by  bis  will  given  L  J 
bis  personal  estate  to  a  cbarity,  tbeleasebold  will  pass  by  the  bequest. (m) 

But  if  real  and  personal  estate  be  given  to  trustees  upon  trust  for  a 
class,  witb  a  discretionary  and  not  an  imperative  power  to  convert  tbe 
whole  into  personal  estate,  and  if  tbe  trustees  make  a  partial  conversion, 
and  then  tbe  discretionary  power  becomes  extinguished  by  their  death 
or  otherwise,  the  objects  of  the  trust  will  take  the  property  as  real  or 
personal  estate,  according  to  tbe  actual  condition  in  which  it  is  found. («) 
So  if  a  mortgage  deed  contain  a  power  of  sale  witb  a  direction  that  the 
surplus  proceeds  shall  be  paid  to  the  mortgagor,  his  executors,  adminis- 
trators, and  assigns,  and  the  property  is  sold  by  the  mortgagee,  the  sur- 
plus will  be  personal  or  real  estate  of  the  mortgagor,  according  as  the 
sale  takes  place  before  or  after  bis  death. (o)  But  where  an  option  to 
purchase  has  been  created  by  a  testator,  and  exercised  after  his  death, 
such  exercise  has  been  held  to  effect  a  retrospective  conversion. (^) 

In  some  cases  a  conversion  of  personal  estate  is  implied.  Thus  as  a 
general  rule,  if  a  testator  give  his  personal  estate,(g)  or  the  residue  of 
bis  personal  estate, (/•)  or  the  interest  of  his  property,(s)  in  trust  for  or 
to(^)  several  persons  in  succession,  and  tbe  property  is  of  a  wasting  na- 
ture, as  leasebolds,  long  annuities,  &c.,  the  court  implies  the  intention 
thatsuch  perishable  estate  *sbould  assume  a  permanent  character,  p^Qr,Q-i 
and  so  become  capable  of  succession.  The  court  accordingly  in  L  '"  J 
these  cases,  directs  a  conversion  into  3  per  cent.  Bank  Annuities.  "  It 
is  given,"  observed  Lord  Eldon  in  the  leading  case  of  Howe  v.  Earl  of 
Dartmouth," (it)  as  all  his  personal  estate,  and  the  mode  in  which  he 
says  it  is  to  be  enjoyed  is  to  one  for  life,  and  to  the  others  afterwards. 
Then  the  court  says  it  is  to  be  construed  as  to  the  perishable  part,  so 
that  one  shall  take  for  life  and  the  others  afterwards,  and  unless  tbe 
testator  directs  the  mode  so  that  it  is  to  continue  as  it  was,  tbe  court 
understands  that  it  shall  be  put  in  such  a  state  that  tbe  others  may  enjoy 

(I)  Du  Hourmelin  v.  Sheldon,  1  Beav.  79;  4  M.  &  Cr.  525. 

(m)  Shadbolt  v.  Thornton,  17  Sim.  49.  But  the  ground  upon  which  the  court 
held  that  there  was  such  a  trust  for  conversion  does  not  appear  in  the  report. 

(«)  Walter  v.  Maunde,  19  Ves.  424;  Shipperdson  v.  Tower,  1  Y.  &  C.  Ch.  Ca. 
441  ;  Policy  v.  Seymour,  2  Y.  &  C.  708  ;  and  see  Cowley  v.  Harstongue,  1  Dow. 
378  ;  Bourne  v.  Bourne,  2  Hare,  35.  Otherwise,  where  the  power  is  impe^ati^'e, 
Grieveson  v.  Kirsopp,  2  Keen,  653. 

(o)  Wright  V.  Rose,  1  Sim.  &  Stu.  322  ;  and  see  Re  Cooper's  Trust.  4  De  G.  M.  & 
G.  768. 

[p)  Lawes  v.  Bennett,  1  Cox,  167  ;  Townley  v.  Bedwell,  14  Ves.  590  ;  but  see 
Drant  v.  Vause,  1  Y.  &  C.  Ch.  Ca.  580  ;  Erauss  v.  Smith,  2  De  Gex  &  Sm.  722. 

{q)  Howe  v.  Earl  of  Dartmouth,  7  Ves.  137. 

(r)  Cranch  v.  Cranch,  cited  Howe  v.  Earl  of  Dartmouth,  7  Ves.  141,  note: 
Powell  v.  Cleaver,  cited,  lb.  142  ;  Wichfield  v.  Baker,  2  Beav.  481  ;  Crawley  v. 
Crawley,  7  Sim.  427  ;  Sutherland  v.  Cooke,  1  Coll.  498  ;  Johnson  v.  Johnson,  2 
Coll.  441. 

(s)  Fearns  v.  Young,  9  Ves.  549;  Benn  v.  Dixon,  10  Sim.  636.  Sec  Oakes  v. 
Strachey,  13  Sim.  414. 

(0  House  v.  Way,  12  Jur.  959. 

(m)  7  Ves.  148;  Wilkinson  v.  Duncan,  3  Jur.  N.  S.  530. 


636       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

it  after  the  decease  of  the  first,  and  the  thing  is  quite  equal,  for  it  might 
consist  of  a  vast  number  of  particulars  ;  for  instance,  a  personal  annuity 
not  to  commence  in  enjoyment  till  the  expiration  of  twenty-one  years 
from  the  death  of  the  testator,  payable  upon  a  contingency  perhaps.  If 
in  this  case  it  is  equitable  that  long  or  short  annuities  should  be  sold  to 
o-ive  every  one  an  equal  chance,  the  court  acts  equally  in  the  other  case, 
for  those  future  interests  are  for  the  sake  of  the  tenant  for  life  to  be 
converted  into  a  present  interest,  being  sold  immediately  in  order  to 
yield  an  immediate  interest  to  the  tenant  for  life.  As  in  the  one  case, 
that  in  which  the  tenant  for  life  has  too  great  an  interest,  is  melted  for 
the  benefit  of  the  rest,  in  the  other,  that  of  which,  if  it  remained  in  specie, 
he  might  never  receive  anything,  is  brought  in,  and  he  has  immediately 
the  interest  of  its  present  worth." 

But  an  intention  that  the  property  should  be  enjoyed  in  specie  may 
appear  from  the  form  of  the  bequest,  or  be  collected  from  the  terms  iu 
which  it  is  expressed.  As  if  there  be  a  specific  bequest  of  leaseholds  or 
of  stock,  or  if  the  testator  assume  that  the  property  is  to  remain  in  specie 
by  speaking  of  the  devisees  or  legatees  as  in  the  perception  of  the  rents 
of  leasehold  estate,  or  the  dividends  of  stock,  or  if  a  testator  negative  a 
sale  at  the  time  of  his  death  by  directing  a  conversion  at  a  subsequent 
period. 

Thus,  the  property  was  decreed  to  be  enjoyed  in  specie  where  a  testa- 
r*8im  trix having ^OH^  annuities,  and  no  other  stock  *gave  certain  lega- 
L  -I  cies  out  of  her  ^^ funded  property"  and  bequeathed  "the  re- 
mainder of  her  dividends  to  A.  for  life,"  and  after  her  decease  gave  sums 
of  "  stock"  of  various  amounts  to  different  persons. (i?)  So  where  a  testa- 
tor having  long  annuities  gave  100?.  long  annuities  to  A.,  "the  residue 
of  his  property  all  he  did  or  might  possess  in  the  funds,  copy  or  lease- 
hold estate,"  to  B.  and  C.  for  their  lives,  and  on  the  death  of  both  to 
be  divided  among  certain  persons  in  the  will  named. (r)  So  where  a 
testator  having  leaseholds  gave  all  his  estate  to  A.  and  B.  upon  trust  to 
permit  C.  to  enjoy  "  the  rents,  issues,  profits,  interest,  and  annual  pro- 
ceeds thereof,"  for  her  life,  and  on  her  decease  upon  trust  for  the  two 
daughters  of  G.(x\  So  where  a  testator  having  leaseholds  gave  all  his 
property  of  every  description  and  denomination  unto  three  trustees  upon 
trust  for  A.  B.  for  her  life,  for  her  separate  use,  and  upon  her  decease  upon 
trust  for  C.  D.  for  her  life,  for  her  separate  use,  and  on  her  decease  unto 
her  children  in  equal  shares  j  and  if  there  should  be  no  children,  the 
whole  of  the  property  to  be  sold  by  auction,  and  the  proceeds  to  be  dis- 
tributed amongst  certain  parties. (?/)  So  where  a  testator  having  lease- 
holds, gave  his  wife  "all  his  pi'opcrty  in  every  shape,  and  without  any 
reserve,  and  in  whatever  manner  it  was  situate  for  her  life,  and  at  her 

{v)  Vincent  v.  Newcombe,  Younge,  599  ;  and  see  Sutherland  v.  Cooke,  1  Coll. 
503. 

iw)  Bethune  v.  Kennedy,  1  M.  k  C.  114. 

(a;)  Goodenough  v.  Tremamondo,  2  Beav.  512;  Bowden  v.  Bowden,  17  Sim. 
65  ;  Harris  v.  Poyner,  1  Drew.  174;  Blann  v.  Bell,  2  De  Gex,  Mac.  &  Gor.  775  ; 
Crowe  V.  Crisford,  17  Beav.  507;  Hood  v.  Clapham,  19  Beav.  90;  Marshall  v. 
Bremner,  2  Sm.  &  Gif.  237  ;  and  see  contra,  Pickup  v.  Atkinson,  4  Hare,  624. 

[y)  Daniel  v.  Warren,  2  Y.  &  C.  Ch.  Ca.  290  ;  Chambers  v.  Chambers,  15  Sim. 
183;  Burton  v.  Mount,  2  De  Gex  &  Sm.  383. 


MAXIMS    OF    EQUITY,    ETC.  637 


death,  the  property  to  be  divided"  amongst  certain  persons. (2)  So  where 
a  testator  having  leascJwIds,  and  being  entitled  to  an  annuity  pwr  autre 
vie  gave  to  his  wife  "all  the  interest,  rents,  dividends,  annual  produce 
or  profits,  use  and  enjoyment"  of  all  his  real  and  personal  estate  for  her 
life,  and  after  her  decease  to  A.,  or  in  case  he  died  in  the  testator's  life- 
time, *to  B.  and  C.(tt)  So  where  a  testator  having  Io7ig  annui-  pgj^j^-i 
ties  and  no  other  stock,  gave  all  his  real  and  personal  estate  to  his  L  J 
executors  ''upon  trust  to  permit  his  wife  to  receive  the  rents  and  profits, 
dividends,  and  annual  proceeds  for  life,  and  on  her  decease  upon  trust 
to  sell  his  freehold  and  leasehold  houses,  and  to  convert  the  whole  of  his 
estate  into  money."(Z^)  So  where  a  testator  having  leaseholds  gave  to  his 
wife  "the  full  and  entire  enjoyment"  of  his  real  and  personal  estate  for 
her  life,  and  after  her  decease  he  directed  his  trustees  to  sell  all  the 
leasehold  and  chattel  property. (r)  So  where  a  testator  having  leaseholds 
and  long  annuities  gave  to  his  wife  "  the  whole  income  of  his  property" 
for  her  life,  "but  not  to  sell  without  the  whole  consent  of  all  parties," 
and  at  her  decease  the  testator  gave  a  debt  owing  to  him  to  A.  and  100^. 
3  per  cent,  stock  to  be  "  bought  in  "  within  three  months  from  his  wife's 
decease  to  B.,  and  then  disposed  of  the  residue.(cZ)  "So  where  a  testator 
gave  the  residue  of  the  stocks  and  funds  that  should  be  standing  in  his 
name  at  his  decease  to  trustees  upon  trust  to  pay  the  interest  and  divi- 
dends thereof  to  A.  for  life,  and  on  her  decease  upon  trust  for  B.  and  C, 
and  the  testator  gave  a  power  to  the  trustees  to  transfer  the  stocks  and 
funds  into  any  other  funds  and  bequeathed  the  residue  of  his  personal 
estate  to  A.  absolutely,  it  was  held  that  the  long  annuities  of  which  the 
testator  died  possessed,  were  to  be  specifically  enjoyed,  and  that  the 
power  given  to  the  trustees  was  for  the  security  of  the  property,  and  was 
not  intended  to  cut  down  the  specific  gift.(e) 

The  case  of  Mills  v.  Mills,(/)  is  not  to  be  reconciled  with  the  forego- 
ing authorities,  and  is  not  considered  as  law.  A  testator  gave  his  free- 
holds, and  leaseholds,  stocks  in  the  public  funds,  and  all  other  his  real 
and  personal  estate  to  trustees  upon  trust  to  pay  the  rents,  issues,  and 
profits  of  his  freehold  and  leasehold  estates  and  the  dividends,  interest, 
and  proceeds  of  his  money  in  the  funds,  and  other  his  said  personal  estate 
to  *A.  for  life,  with  remainders  over,  and  a  question  arose  as  to  r*g22"| 
the  testator's  leaseholds,  and  bank  stock.  The  vice-chancellor  L  "^J 
held  that  the  leaseholds  were  not  to  be  specifically  enjoyed,  but  must  be 
sold;  "  Unless,"  he  said,  "  the  bequest  is  construed  as  a  general  bequest 
the  consequence  would  be  that  if  he  had  surrendered  the  leaseholds  and 
taken  renewals  they  would  not  have  passed  ;"  but  there  seems  to  be  some 
confusion  here  between  a  specific  bequest  and  a  direction  for  specific  en- 
joyment.(^)     Unquestionable,  it  was  a  general  bequest  in  the  sense  that 

{z)  Collins  V.  Collins,  2  M.  &  K.  T03  ;  see  observations  on  this  case  in  Vaughaa 
V.  Buck,  1  Phill.  78  ;  Lichfield  v.  Baker,  13  Beav.  447. 

(a)  Pickering  v.  Pickering,  2  Beav.  31  ;  4  M.  &  C.  289 ;  but  the  will  was  also  of 
a  very  special  character.  {h)  x\.lcock  v.  Sloper,  2  M.  &  K.  699. 

{c)  Harvej^  v.  Harvey,  5  Beav.  134.  {d)  Hinves  v.  Hinves,  3  Hare,  609. 

(e)  Lord  v.  Godfrey,  4  xMad.  455. 

(/)   7  Sim.  501  ;  see  Oakes  v.  Strachey,  13  Sim.  414. 

{g)  As  to  the  distinction,  see  Pickering  v.  Pickering,  2  Beav.  57  ;  4  M.  &  C.  299. 


(338  LEAVIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

the  testator  meant  all  the  leaseholds  he  should  have  at  the  time  of  his 
death  to  pass,  but  consistently  with  this  intention,  he  might  declare,  as 
the  lesal  construction  apparently  was,  that  all  such  leaseholds  should  be 
specifically  enjoyed.  It  was  rightly  decided,  that  the  bank  stock  should 
be  sold,  for  it  did  not  fall  under  the  description  of  "  public  funds,"  and 
therefore,  had  not  been  specifically  mentioned.  There  could  have  been 
no  difficulty  in  holding,  that  under  the  same  clause,  part  should  be  specifi- 
cally enjoyed  and  part  be  converted. (A) 

The  rule  of  the  court  under  which  perishable  property  is  converted 
does  not  proceed  upon  the  assumption  that  the  testator  in  fact  intended 
his  property  to  be  sold,  but  is  founded  upon  the  circumstance  that  the 
testator  has  intended  the  perishable  property  to  be  enjoyed  by  different 
persons  in  succession,  which  can  only  be  accomplished  by  means  of  a 
sale.(/)  The  object  of  the  rule  in  truth  is  to  secure  a  fair  adjustment 
of  the  rights  of  the  tenants  for  life  and  those  coming  after  him.  Upon 
similar  grounds,  therefore,  where  a  residue  which  is  without  any  express 
trust  for  conversion,  bequeathed  to  persons  in  succession,  consists  of 
property  which,  though  not  wasting,  is  of  a  class  producing  a  high  rate 
of  interest  in  proportion  to  its  money  value,  and  liable  consequently  to 
additional  risk,  such  as  railway  shares,  canal  shares,  shares  of  insurance 
or  other  companies,  foreign  bonds  or  stocks,  &c.,  &c.,  the  persons 
L  ^^^J  ^entitled  in  expectancy  have  a  right  to  call  for  the  conversion  of 
such  property  into  three  per  cent,  stock. (^•) 

ir  a  testator  direct  that  his  personal  estate  shall  be  laid  out  in  a  pur- 
chase of  lands,  to  be  settled  on  A.  for  life,  with  remainders  over,  and  that 
the  interest  of  the  personal  estate  shall  he  accumidated  and  laid  out  in  a 
purchase  of  lands  to  be  settled  to  the  same  uses,  the  court  to  prevent  the 
hardship  that  would  fall  upon  the  tenants  for  life,  if  the  purchases  were 
protracted  for  a  long  period,  either  from  unavoidable  circumstances,  or 
from  the  dilatoriness  of  the  trustee,  interprets  the  intention  in  such  cases 
to  be  that  the  accumulation  should  be  confined  to  one  year  from  the 
testator's  death.  At  the  expiration  of  that  period,  the  court  presumes 
the  trustees  to  be  in  a  condition  to  invest  the  personal  estate,  and  gives 
the  tenant  for  life  the  interest  from  that  time.(^) 

So  if  a  testator  devise  his  real  estate  to  be  sold  and  the  produce  thereof, 
and  also  the  rents  and  profits  of  the  said  estate,  in  the  meantime  to  he 
laid  out  in  hanlc  annuities  or  other  securities,  upon  trust  for  A.  for  life, 
with  remainders  over,  the  accumulation  of  the  rents  is  not  extended 
beyond  one  year  from  the  testator's  death,  but  the  tenant  for  life  is 
entitled  to  them  from  that  period. (m) 

{h)  See  Vaughan  v.  Buck,  1  Pbill.  75  ;  Bethune  v.  Kenned}-,  1  M.  &  C.  114. 

{i)  Cafe  V.  Bent,  5  Hare,  35. 

\k)  Thornton  v.  Ellis,  15  Beav.  193  ;  Blann  v.  Bell,  5  De  Gex  &  Sm.  658  ;  2  De 
Gex,  Mac.  &  Gor.  775. 

{I)  Sitwell  V.  Bernard,  6  Ves.  520  ;  andEntwistle  v.  Markland,  Stuart  v.  Bruere, 
cited,  lb.  528,  529  ;  Griffith  v.  Morrison,  cited  1  J.  &  W.  311  ;  Tucker  v.  Boswell, 
5  Beav.  607  ;  Kilvington  v.  Gray,  2  S.  &  S.  396  ;  Parry  v.  Warrington,  6  Mad. 
155;  Stair  v.  Macgill,  1  Bligh,  N.  S.  662. 

(m)  Noel  V.  Lord  Henley,  7  Price,  241 :  Vickers  v.  Scott,  3  M.  &  K.  500 ;  and 
see  Vigor  V.  Harwood,  12  Sim.  172;  Greisley  v.  Earl  of  Chesterfield,  13  Beav. 
288  ;  Beanland  v.  Halliwell,  1  C.  P.  Cooper,  t.  Cottenham,  169,  note  (a). 


MAXIMS    OF    EQUITY,    ETC.  639 

From  the  language  used  by  Lord  Eldon,  iu  the  case  of  Sitweil  v.  Ber- 
nard,(^i)  (in  which  the  rule,  that  the  accumulation  where  expressly 
directed,  extends  only  to  one  year  from  the  testator's  death,  was  first 
established,)  an  impression  prevailed  that  in  no  case  was  the  tenant  for 
life  entitled  to  the  produce  of  the  land,  or  fund  to  be  converted  during  the 
first  year.  Both  Sir  John  Leach, (o)  and  Sir  Thomas  Plumer,(p)  r^oi  j-i 
^sanctioned  this  doctrine  by  their  authority.  However,  Lord  l  J 
Eldon  had  no  intention  of  laying  down  any  such  rule,((/)  and  it  has  since 
been  unquestionably  settled  that  the  tenant  for  life  has  an  interest  in  the 
first  year's  produce,^?-)  varying,  however,  according  to  the  circumstances 
of  the  case,  as  will  appear  from  the  following  distinctions. 

If  a  testator  desire  that  his  personal  estate  shall  be  laid  out  and  invested 
in  government  or  real  securities, (s)  or  in  a  purchase  of  lauds,  with  a 
direction  express(^)  or  implied(«)  for  the  investment  thereof  in  the  mean- 
time in  government  or  real  securities,  and  that  the  lands  to  be  purchased 
shall  be  in  trust  for  A.  for  life,  with  remainders  over ;  the  produce  of  the 
government  and  real  securities  of  which  the  testator  was  possessed  at  the 
time  of  his  death  (these  being  the  very  investments  contemplated  by  bis 
will,)  belong /?'o»ft  the  time  of  the  death  to  the  tenant  for  life. 

If,  during  the  first  year,  the  conversion  directed  by  the  testator  is  actually 
made,  the  tenant  for  life  is  also  entitled  to  the  produce  of  the  property, 
in  its  converted  form,  from  the  time  of  the  conversion,  as  if  land  be 
directed  to  be  sold,  and  the  produce  invested  in  government  or  real 
securities, (?;)  or  money  is  directed  to  be  laid  out  on  land,(i6-)  the  tenant 
for  life  is  entitled  to  the  dividends  or  interest  in  the  first  case,  from  the 
time  of  the  sale  and  investment,  and  to  the  rents  in  the  latter  case  from 
the  time  of  the  purchase,  though  iu  the  course  of  the  first  year. 

Where,  at  the  death  of  the  testator,  the  property  is  not  in  the  state  in 
which  it  is  directed  to  be,  the  tenant  for  life  is,  before  the  conversion, 
entitled,  as  the  court  has  now  decided,  not  to  the  actual  produce,  but  to 
a  reasonable  fruit  of  the  property,  from  the  death  of  the  testator  up  to 
the  time  of  the  conversion,  whether  made  in  the  course  of  the  first  year 
or  ^subsequently,  as  if  personal  estate  be  directed  to  be  laid  out  r^o-,  --, 
in  government  or  real  securities,  and  part  of  the  personal  estate  L  J 
consists  of  bonds,  bank  stock,  &c.,  (not  being  government  or  real  securi- 
ties,) the  tenant  for  life  is  entitled  to  the  dividends  on  so  much  of  3  per 
cent,  consolidated  bank  annuities  as  such  part  of  the  personal  estate,  not 
being  government  or  real  securities,  would  have  purchased  at  the  expira- 
tion of  one  year  from  the  testator's  death. (x) 

{n)  6  Ves.  520.  (o)  Stott  v.  Hollingworth,  3  Mad.  IGl. 

Ip)  Taylor  v.  Hibbert,  1  J.  &  W.  308. 

{q)  See  Angerstein  v.  Martin,  T.  &  R.  238  ;  Hewitt  v.  Morris,  lb.  244. 

[r]   Macpherson  v.  Macpherson,  16  Jur.  847. 

(s)  Hewett  v.  Morris,  T.  &  R.  241  ;  La  Terriere  v.  Bulmer,  2  Sim.  18. 

(f)  Angerstein  v.  Martin,  T.  &  R.  232. 

(w)  Caldecott  v.  Caldecott,  1  Y.  &  C.  Ch.  Ca.  312,  '737. 

(y)  La  Terriere  v.  Bulmer,  2  Sim.  18  ;  Gibson  v.  Bott,  7  Yes.  89. 

[ic)  See  Angerstein  v.  Martin,  T.  &  R.  240. 

[x)  Dimes  v.  Scott,  4  Russ.  195.  In  Douglas  v.  Congreve,  1  Keen,  410  ;  the  .M. 
R.  gave  the  tenant  for  life  the  interest  of  the  personal  estate  making  interest  from 
the  death  of  the  testator;  but  iu  the  subsequent  cases  of  Taylor  v.  Clark,  1  Hare, 


640       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

But  of  course,  if  it  appear  from  the  terms  of  the  will  that  the  testator 
intended  to  give  his  trustees  a  discretion  as  to  the  time  of  conversion, 
which  discretion  has  been  fairly  exercised,  and  that  the  tenant  for  life 
was  to  have  the  actual  income  until  conversion,  the  case  must  be  governed 
by  the  testator's  intention,  and  not  by  the  general  rule.(y) 

In  Gibson  v.  BotUz)  a  testator  directed  his  personal  estate  to  be  con- 
verted into  government  or  real  securities,  and  the  title  of  some  leaseholds 
being  defective  they  could  not  be  sold  ;  and  Lord  Eldon  said,  they  must 
be  considered  as  property  which  it  was  for  the  benefit  of  all  parties  to 
retain  in  specie,  and  decreed  the  tenant  for  life  to  have  interest  at  4 
per  cent,  from  the  death  of  the  testator  on  the  value  thereof  at  that 
time.(o)  And  so  in  another  case  Sir  J.  Parker,  vice-chancellor,  ob- 
served that  when  the  property  was  so  laid  out  as  to  be  secure,  and  to 
produce  a  large  annual  income,  but  was  not  capable  of  immediate  conver- 
sion, without  loss  and  damage  to  the  estate,  there  the  rule  was  not  to 
r*81fil  ^o'^^^i't  ^^^^  property  but  to  set  a  *value  upon  it,  and  give  to  the 
L  J  tenant  for  life  4  per  cent,  on  such  value,  and  the  residue  of  the 
income  must  then  be  invested,  and  the  income  of  the  investment  paid  to 
the  tenant  for  life,  but  the  corpus  must  be  secured  for  the  remainder- 
man.(Z*) 

If  a  testator  direct  his  real  estate  to  be  sold,  and  the  proceeds  to  be 
laid  out  and  invested  upon  trust  for  A.  for  life,  with  remainders  over, 
the  tenant  for  life  is  entitled  to  the  rents  of  the  estate  from  the  testator's 
decease  ;(c)  and  so  if  the  sale  be  directed  on  the  death  of  a  particular 
person,  the  tenant  for  life  is  entitled  to  the  rents  from  the  death  of  that 
person.  (rZ) 

In  connection  with  the  subject  of  conversion,  it  will  be  proper  to  intro- 
duce a  few  remarks  upon  the  doctrine  of  election ;  for  where  land  is  to 
be  converted  into  money,  or  money  into  land,  the  notional  conversion 
will  subsist  only  until  some  cestui  que  trust  who  is  competent  to  elect, 
intimate  his  intention  to  take  the  property  in  its  original  character,  (e) 
The  court  will  not  compel  a  conversion  against  the  will  of  the  absolute 
owner ;  for  should  the  conversion  be  made,  he  would  immediately  recon- 
vert it,  and  equity  will  do  nothing  in  vain.(/) 

IGl  ;  and  Morgan  v.  Morgan,  14  Beav.  72  ;  the  authority  of  Dimes  v.  Scott  was 
followed.  In  Caldecott  v.  Caldecott,  1  Y.  &  C.  Ch.  Ca.  312,  T37,  the  court  gave 
the  tenant  for  life  the  actual  interest  of  the  mortgages  as  being  proper  investments, 
and  4  per  cent,  interest  on  the  personal  estate  not  consisting  of  government  or  real 
securities,  on  the  assumption,  apparently,  that  the  case  fell  within  the  principle  of 
Gibson  v.  Bott.  In  Sutherland  v.  Cooke,  1  Coll.  503,  under  special  circumstances, 
4  per  cent,  on  the  value  was  also  allowed. 

(?/)  Mackie  v.  Mackie,  5  Hare,  70;  Wrey  v.  Smith,  14  Sim.  202;  Sparling  v. 
Parker,  9  Beav.  524. 

(z)  7  Ves.  89. 

(a)  Seethe  decree  from  Reg.  Lib.  Caldecott  v.  Caldecott,  1  Y.  &  C.  Cb.  Ca.  320. 

(b)  Meyer  v.  Simonsen,  5  De  Gex  &  Sm.  726. 

(c)  Casamajor  v.  Strode,  cited  Walker  v.  Shore,  19  Ves.  390;  Hutcheon  v. 
Mannington,  1  Ves.  jun.  367,  per  Cur. 

(d)  Fitzgerald  v.  Jervoise,  5  Mad.  25,  of  which  the  marginal  note  does  not 
exactly  accord  with  the  report  itself. 

(e)  Harcourt  V.  Seymour,  2  Sim.  N.  S.  45;  Cookson  v.  Reay,  5  Bear.  22;  12 
CI.  &  Fin.  121 ;  Dixon  v.  Gayfere,  17  Beav.  433. 

(/)  Seeley  v.  Jago,  1  P.  \V.  389. 


MAXIMS    OF    EQUITY,    ETC.  641 

Upon  tliis  subject  we  shall  consider  : — 1.  What  persons  are  capable  of 
electing  ;  and,  2.  In  what  manner  the  act  of  election  may  be  manifested. 

1.  In  respect  of7?e>'so?ia/  incaj)acitij ,  an  infant,^*/)  lunatiCj^A)  ov  feme 
covert,(i\  has  no  power  to  make  election. 

"  But  although,"  said  Lord  Hardwicke,  "  a  feme  covert  cannot  alter 
the  nature  of  money  to  be  laid  out  in  land  by  contract  or  deed,  yet  if  the 
money  be  invested  in  land  (and  ^sometimes  sham  purchases  r^o^'j-i 
have  been  made  for  the  purposejy/.-)  she  may  then  levy  a  fine  of  L  J 

the  land,  and  give  it  to  her  husband  or  anybody  else.  There  is  a  way,  also, 
of  doing  this  without  laying  the  money  out  in  land,  and  that  is,  by  coming 
into  a  court  of  equity,  and  consenting  to  take  the  money  as  personal 
estate ;  for  upon  her  being  present  in  court,  and  being  examined  [as  a 
feme  covert  upon  a  fine  is,]  her  consent  binds  the  money  articled  to  be 
laid  out  in  land  as  much  as  a  fine  at  law  would  the  land,  and  she  may 
dispose  of  it  to  the  husband  or  anybody  else.  And  the  reason  of  it  is 
this — that  at  law,  money  so  articled  to  be  laid  out  in  land  is  considered 
barely  as  money  till  an  actual  investment,  and  the  equity  of  this  court 
alone  views  it  in  the  light  of  real  estate  ;  and,  therefore,  this  court  can 
act  upon  its  own  creature,  and  do  what  a  fine  at  common  law  can  upon 
land."(^)  And  at  a  later  date  Lord  Hardwicke's  views  were  ratified  by 
express  decision. (m) 

Now  by  the  3  &  4  W.  4,  c.  74,  ss.  40,  71,  77,(»)  a  married  woman  is 
enabled,  with  the  concurrence  of  her  husband  and  with  the  formalities 
requii-ed  by  the  act,  to  dispose  of  any  estate  at  law  or  in  equity,  or  any 
interest,  charge,  lien,  or  incumbrance  in  or  upon  lands  or  money  to  be 
laid  out  in  a  purchase  of  lands,  or  to  relinquish  or  release  any  power 
over  the  same,  as  if  she  were  a  feme  sole,  so  that  in  the  case  of  money 
liable  to  be  laid  out  in  land,  a  feme  covert  can,  through  the  medium  of 
the  power  of  disposition  conferred  by  the  act,  virtually  elect  to  take  the 
money. 

And  the  act  enables  a  married  woman  not  only  to  dispose  of  property 
which,  though  personal  estate  in  fact,  is  real  estate  in  equity  (as  money 
to  be  invested  in  land,)  but  also  of  property  which  is  in  equity  personal 
estate,  provided  only  it  be  an  interest  in  land  ;  and  this  although  accord- 
ing to  the  ordinary  doctrines  of  the  court  the  married  woman  would,  by 
reason  of  her  interest  being  reversionary,  have  no  such  power  of  disposi- 
tion. Thus,  where  real  estate  is  devised  upon  trust  for  sale  in  terms 
amounting  to  a  conversion  out  and  out,  and  *a  married  woman  r*o-j^o-i 
takes  a  share  of  the  proceeds,  she  can,  under  the  statute,  dispose  L  -" 
of  her  share,  even  though  reversionary,  as  being  an  interest  in  land.(o) 

(g)  Carr  v.  Ellison,  2  B.  C.  G.  56 ;  Earlom  v.  Saunders,  Arab.  241  ;  Tliorntoa 
T.  Hawlev,  10  Ves.  129  ;  Van  v.  Barnett,  19  Ves.  102  ;  Seeley  v.  Jago,  1  P.  W. 
389  ;  Padbury  v.  Clark,  2  Mac.  &  Gor.  298  ;  and  see  Ashby  v.  Palmer,  1  Mer.  301. 

(A)  Ashhy  v.  Palmer,  1  Mer.  296. 

(t)  Oldham  y.  Hughes,  2  Atk.  452  ;  Frank  v.  Frank,  3  M.  &  C.  IVI ;  Re  Fosard's 
Trust,  1  Kay  &  Johns.  233. 

(k)  See  Henley  v.  Webb,  5  Mad.  407.  (l)  Oldham  v.  Hughes,  2  Atk.  453. 

(m)  Blnford  v.  Bawden,  1  Ves.  jun.  512. 

(«)  Extended  to  contingent  interests  by  the  8  &  9  Vict.  c.  106,  s.  6. 

(o)  Briggs  V.  Chamberlain,  11  Hare,  69  ;  Tuer  v.  Turner,  20  Beav.  460. 


642  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

And  it  is  conceived,  that  the  same  principle  must  apply  to  the  case  of  a 
reversionary  money  legacy  raisable  out  of  land,  notwithstanding  the  doubts 
entertained  by  Lord  Justice  (then  vice-chancellor)  Knight  Bruce,  in  the 
case  of  Hobby  v.  Collins. (p) 

It  has  been  held  that  a  remainderman  may  elect  so  as  to  bind  the 
rio-hts  '<  inter  se"  of  his  heir  and  personal  representative,  notwithstanding 
th°e  subsistence  of  the  prior  estate.  Thus,  in  Lingen  v.  Sowray,((/)  A., 
on  his  marriage,  agreed  to  add  700?.  to  the  lady's  portion  of  700/.,  and 
the  securities  for  both  sums  were  assigned  to  trustees,  and  the  money  was 
directed  to  be  laid  out  in  lands  to  be  settled  to  the  use  of  the  husband 
for  life,  remainder  to  the  wife  for  life,  remainder  to  the  first  and  other 
sons  in  tail,  remainder  to  the  right  heirs  of  the  husband.  There  was  no 
issue  of  the  marriage,  and  250/.  of  the  trust-money  was  called  in  by  the 
direction  of  the  husband,  and  placed  out  upon  other  securities,  and  a 
trust  declared,  not  for  the  husband  and  his  heirs,  but  for  the  husband 
and  his  executors  and  administrators.  The  husband  afterwards  died, 
having  devised  part  of  his  real  estate  to  his  wife,  and  the  residue  to  J. 
S.,  and  having  bequeathed  his  personal  estate  and  all  his  securities  for 
money  to  his  wife.  It  was  debated  whether  the  250/.  ought,  as  to  the 
operation  of  the  husband's  will,  to  be  regarded  in  the  light  of  realty  or 
personalty.  Lord  Harcourt  said,  '<  as  to  the  250/.  which  was  called  in 
by  the  testator,  and  afterwards  placed  out  on  securities  on  a  different 
trust,  that  shall  be  taken  to  be  personal  estate,  forasmuch  as,  there  being 
no  issue  of  the  marriage,  it  was  in  the  power  of  the  husband  to  alter  and 
dispose  of  it  as  against  the  heir-at-law,  though  not  as  against  his  wife." 
But  the  remainderman  can,  of  course,  only  elect  subject  to  the  right  of 
r*81Q1  *^^  owner  of  the  prior  estate  to  call  for  the  actual  conversion  *of 
L  J  the  land  or  money  in  accordance  with  the  instrument  of  trust  ^(r) 
and  it  is  conceived  that,  should  this  right  be  insisted  on,  the  conversion 
'^de  facto"  would  render  the  intended  election  ineffectual. 

Where  an  estate  is  directed  to  be  sold,  the  proceeds  to  be  divided 
amongst  several  persons,  no  one  singly  has  a  right  to  elect  that  his  own 
undivided  share  shall  not  be  disposed  of,(.s)  for  the  other  undivided 
shares  will  not  sell  so  beneficially  in  proportion  as  if  the  estate  were  en- 
tire ■,(t)  but  if  money  be  directed  to  be  laid  out  in  lands  to  be  settled  on 
A.,  B.,  and  C,  as  tenants  in  common,  any  one  of  them  may  elect  to  take 
his  own  third  as  money,  for  two-thirds  may  be  invested  just  as  advanta- 
geously as  the  whole  sum.(«<) 

Sound  principle  would  require  that  a  tenant  in  tail  of  lands  to  be 
purchased  should  not  be  allowed  to  elect,  because  the  interests  of  the 

(p)  4  De  Gex  &  Sm.  289 ;  and  see  observations  of  Lord  St.  Leonards  in  his 
essay  on  the  real  property  Statutes,  240. 

(q)  1  P.  W.  172  ;  and  see  Stead  v.  Newdigate,  2  Jler.  531 ;  Gillies  v.  Longlands, 
4  De  Gex  &  Sm.  379. 

(r)  Gillies  v.  Longlands,  4  De  Gex  &  Sm.  379  ;  Ex  parte  Stewart,  1  Sm.  &  Gif.  32. 

(s)  HoUoway  v.  Radcliffe,  3  Jur.  N.  S.  198  ;  Fletcher  v.  Ashburner,  1  B.  C.  C. 
500,  per  Sir  T.  Sewell ;  Deeth  v.  Hale,  2  Moll.  317  :  and  see  Smith  v.  Claxton,  4 
Mad.  494. 

(0  Chalmer  v.  Bradley,  1  J.  &  W.  59  ;  and  see  Trower  v.  Knightley,  6  Mad.  134. 

(m)  Seeley  v.  Jago,  1  P.  W.  389;  Walker  v.  Denne,  2  Yes.  jun.  182,  per  Lord 
Loughborough. 


I 


MAXIMS    OF    EQUITY,    ETC.  643 

issue  and  tlie  remainderman,  wlio  botli  take  by  title  paramount,  would 
otherwise  be  prejudiced.  But  the  old  rule  appears  to  have  been,  that 
tenant  in  tail  might  in  every  case  have  elected,  and  on  filing  a  bill  would 
have  been  entitled  to  the  money  ;(y)  and  the  principle  upon  which  the 
practice  was  grounded  was  said  to  be,  that  equity  will  do  nothing  in 
vain,  and  it  were  nugatory  to  direct  an  actual  purchase  and  settlement 
when  the  tenant  in  tail  the  next  moment  might  dispose  of  the  fee  sim- 
ple. Lord  Cowper,  however,  in  the  case  of  Colwal  v.  Shadwell,(!6')  took 
the  distinction,  that  where  the  remainder  in  fee  was  not  vested  in  the 
tenant  in  tail  himself,  but  was  limited  over  to  a  stranger,  there,  as  the 
absolute  fee  could  only  be  acquired  by  a  recovery^  which  was  a  thing  of 
time,  and  could  not  be  suffered  in  vacation,  the  remainderman  should 
not  lose  his  chance  3  and  as  in  that  case  the  tenant  in  tail  did  actually 
die  before  the  recovery  was  suffered,  it  showed  *the  remainder-  „^-,„^ 
man's  interest  in  so  glaring  a  light,  that  it  established  the  pre-  L  "^  J 
cedent  ever  afterwards. (a-)  But  even  then  the  money  would  have  been 
decreed  to  the  tenant  in  tail,  provided  the  remainderman  waived  his 
right  and  consented  to  the  payment. (^) 

In  Eyre's  case(2)  Lord  Chancellor  King  was  for  extending  the  same 
protection  to  the  is&ue.  "  I  cannot  see,"  he  said,  "  why  I  should  not 
have  the  like  regard  to  the  iss^le  in  tail  as  for  the  remainderman.  It 
is  possible  the  tenant  in  tail,  before  he  can  light  on  a  purchase  and  settle 
it,  may  die,  leaving  issue,  and  this  is  a  chance  of  which  I  would  not 
deprive  such  issue."  And  in  Speaker  Onslow's  Case, (a)  he  declared 
his  adherence  to  the  same  opinion,  observing,  that  "  the  levying  of  a  fine 
also  was  a  thing  of  time,  there  being  several  olfices  to  pass,  and  the  writ 
of  covenant  to  be  under  the  great  seal."  But  the  rule  which  had  been 
uniformly  acted  upon  before  his  time(i)  appears,  notwithstanding  his 
lordship's  authority,  to  have  been  revived  by  his  successors. (c) 

And  the  election  of  the  tenant  in  tail  need  not  necessarily  have  been 
made  in  a  suit,  but  might  have  been  expressed  by  act  in  pais,  as  if 
tenant  in  tail  with  remainder  to  himself  had  received  the  money  of  the 
trustee,  or  if  tenant  in  tail  with  remainder  to  a  stranger  had  received  it 
of  the  trustee  with  the  consent  of  the  remainderman.  Upon  this  subject 
Lord  Hardwicke  observed,  "■  The  court  jjur sues  the  rights  of  parties,  and 
whatever  a  court  of  common  law  does  by  a  judgment,  or  chancery  by  a 
decree,  is  in  affirmance  of  those  rights,  and  does  not  give  them  a  right 
which  they  had  not  before. (r?)  Why  does  the  court  decree  the  money? 
Because  the  parties  are  entitled  *to  it.  There  is,  therefore,  no  r^op-i-i 
occasion  for  a  decree  of  the  court  to  destroy  the  real  quality  of  the  L     "^  J 

(y)  Cunningham  v.  Moody,  1  Ves.  IVG,  per  Lord  Hardwicke. 

(w)  Cited  Chaplin  v.  Horner,  1  P.  W.  485. 

[x)  See  Cunningham  v.  Moody,  1  Ves.  17G  ;  Talbot  v.  Whitfield,  Bunb.  204. 

{y)  See  Trafford  v.  Boehm,  3  Atk.  440.  (z)  3  P.  W.  13. 

(rt)  3  P.  W.  14,  note  (G). 

{b)  Benson  v.  Benson,  1  P.  W.  130 ;  Short  v.  Wood,  lb.  470  ;  Edwards  v.  Coun- 
tess of  Warwick,  2  P.  W.  173,  admitted. 

(c)  Trafford  v.  Boehm,  3  Atk.  447,  per  Lord  Hardwicke  ;  Cunningham  v.  Moody, 
1  Ves.  176,  per  eundem ;  Holdernesse  v.  Carmarthen,  1  B.  C.  C.  382,  per  Lord 
Thurlow ;  and  see  the  preamble  of  the  39  &  40  G.  3,  c.  56. 

{d)  And  see  Earl  of  Bath  v.  Earl  of  Bradford,  2  Ves.  590. 


644  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

money,  unless  there  be  an  incapacity  of  the  person,  as  in  the  case  of  a 
feme  covert,  who  must  first  be  examined."(e) 

Lord  Thurlow,  indeed,  once  said,  "  If  the  fund  be  outstanding  in 
trustees,  and  it  be  necessary  to  come  hither  in  order  to  obtain  it,  the 
money,  when  obtained,  will  be  personal  property;  and  so  it  would  also, 
if  the  trustees  pay  it  without  suit.  That  is,  supposing  the  estate,  when 
purchased,  would  be  a  fee  simple,  for  it  icouhihe  otherwise  in  case  of  its 
heinrj  an  estate  taiU'[f)  But  the  concluding  remark  must  have  been 
intended  (as  Mr.  Serjeant  Hill,  in  a  note  on  the  passage,  has  observed)(f7) 
to  apply,  not  to  every  tenant  in  tail,  as,  not  to  tenant  in  tail  with  re- 
mainder to  himself  in  fee,  but  only  to  tenant  in  tail  with  remainder  to 
a  stranger ;  for  in  a  subsequent  case,  where  the  tenant  in  tail  had  execut- 
ed an  assignment  of  two  sums  of  money  directed  to  be  laid  out  in  lands, 
his  lordship  said,  "As  to  the  500/.  the  assignor  was  tenant  in  tail,  re- 
mainder to  a  stranger,  remainder  to  himself  in  fee  ;  as  to  the  1000/.  he 
was  tenant  in  tail,  with  remainder  in  fee  to  himself  I  am  clear,  that 
in  regard  to  the  1000/.  he  had  the  absolute  dominion  over  it,  having  the 
immediate  remainder  in  fee;  but  as  to  the  500/.  I  am  equally  clear  the 
other  way,  because  of  the  intermediate  remainder. "(A) 

By  the  39  &  40  Gr.  3,  c.  56,(i)  the  inability  of  the  tenant  in  tail  (with 
remainders  over,)  of  money  to  be  laid  out  in  the  purchase  of  land  to  ob- 
tain possession  of  the  money,  except  through  the  medium  of  a  fictitious 
purchase,(/i)  was  removed.  And  the  court  was  empowered  on  the  petition 
of  the  first  tenant  in  tail  of  such  money-land,  and  of  the  parties  (if  any) 
having  antecedent  estates  therein  (with  a  provision  for  the  separate  exami- 
nation of  married  women,)  to  order  the  money  to  be  paid  to  the  petition- 
r*899l  ^^^  ^^  ^^  ^^^y  should  appoint. (/)  So  *that  a  kind  of  statutory 
L     ""^J  power  of  election  was  thus  conferred  on  tenants  in  tail. 

Now,  by  the  Fines  and  Recoveries  Act, (?n)  a  tenant  in  tail  may,  with 
the  consent  of  the  protector,  if  any,  dispose  absolutely  of  the  lands  en- 
tailed at  any  time,  whether  in  term  or  vacation,  and  by  the  71st  section 
of  the  statute(n)  it  is  enacted,  that  '<  money  to  be  invested  in  the  pur- 
chase of  lands  to  be  settled  so  that  any  person,  if  the  lands  were  pur- 
chased, would  have  an  estate  tail  therein,  shall  be  treated  as  the  lands  to 
be  purchased,  and  the  previous  clauses  of  the  act  shall  apply  to  such 
money,  as  if  it  were  directed  to  be  laid  out  in  the  purchase  oi  freehold 
lands,  and  such  lands  were  actually  purchased  and  settled," 

Upon  the  consideration  of  the  late  enactments,  a  doubt  suggests  itself 
whether,  even  at  the  present  day,  a  tenant  in  tail  may  not  elect  to  take 
in  its  original  character  money  which  is  liable  to  be  laid  out  in  the  pur- 
chase of  lands,  and  declare  such  election  either  by  the  institution  of  a 

(e)  Trafford  v.  Boehm,  3  Atk.  448  ;  but  see  Pearson  v.  Lane,  17  Yes.  106.      ' 
(/)  Pulteney  v.  Darlington,  1  B.  C.  C.  2.36. 
{g)  lb.  note  (a),  Lord  Henley's  edit, 
(/t)  Holdernesse  v.  Carmarthen,  1  B.  C.  C.  382. 

(0  Extended  by  7  G.  4,  c.  45.  {k)  See  Henley  v.  Webb,  5  Mad.  407. 

[1)  See  5  Ves.   12,  note  (8)  as  to  the  qualification  introduced  by  the  court  in 
making  orders  for  payment  under  this  act. 
(m)   3  &  4  W.  4,  c.*'74. 
(«)  The  preceding  section  repeals  the  39  &  40  G.  3,  c.  56,  and  7  G.  4,  c.  45. 


MAXIMS    OF    EQUITY,    ETC.  645 

suit  or  by  act  in  pais.  It  is  true  that  under  the  71st  clause  of  the  late 
act  the  tenant  in  tail  may  at  any  time  defeat  his  issue  and  the  remainder- 
men by  a  deed  executed  with  the  proper  formalities  ;  but  what  is  there 
to  prevent  him  from  exercising  a  power  founded  upon  principles  indepen- 
dent of  the  statute,  and  so  acquiring  the  fee  simple  by  the  mere  act  of 
election  ?  It  may  be  said  that  the  old  rule,  which  made  election  a  bar 
to  the  issue,  might  have  been  grounded  on  this — that,  because  no  fine 
or  recovery  could  have  been  levied  or  suffered  of  money,(o)  the  court, 
on  that  account,  held  election  to  have  the  effect  of  a  bar,  lest  the  tenant 
in  tail  should  lose  the  power,  which  the  law  intended  him,  of  defeating 
the  settlement;  but  that,  since  by  the  Fines  and  Recoveries  Acta  tenant 
in  tail  of  money  may  bar  his  issue  and  the  remainderman  by*the  r^ooo-i 
same  formalities  as  if  the  lands  were  actually  purchased  and  set-  L  ^  -1 
tied,  the  same  indulgence  ought  not  now  to  be  shown.  But  to  this  it 
may  be  answered,  that  the  tenant  in  tail  was  allowed  to  elect,  not  because 
the  tenant  in  tail  of  money  had  a  right  to  exercise  the  same  powers  of 
ownership  as  a  tenant  in  tail  of  lands,  but  for  the  purpose  of  avoiding 
circuity.  Had  the  former  been  the  principle,  the  tenant  in  tail  might 
equally  have  barred  the  remainderman  as  the  issue ;  but  for  the  destruc- 
tion of  remainders  an  actual  settlement  was  necessary,  and  a  sham  pur- 
chase was  often  resorted  to  for  the  purpose. (p)  It  is,  however,  clear, 
that  no  person  being  tenant  in  tail  of  money  to  belaid  out  on  land  could 
at  the  present  day  be  advised,  if  he  would  acquire  the  absolute  interest, 
to  dispense  with  the  formalities  prescribed  by  the  Fines  and  Recoveries 
Act. 

2.  The  act  of  election  either  may  be  presumed  by  the  court,  or  may 
be  expressly  declared. 

The  presumption  may  arise  from  slight  circumstances  of  conduct. (5) 
Thus  it  will  be  sufficient,  where  land  is  to  be  converted  into  money,  if 
the  cestui  que  trust  enter  into  possession  and  take  the  title-deeds  into  his 
own  custody,  for  the  trustees  cannot  recover  the  deeds  from  the  cestui 
que  trust,  and  they  cannot  sell  without  them,(r)  or  if  the  cestui  que  trust 
merely  keep  the  estate  for  a  length  of  time  unsold(s)  (but  in  one  case  a 
period  of  two  years  was  considered  not  to  be  a  sufficient  indication  of  such 
an  intention, )(^)  or,  where  money  is  to  be  turned  into  land,  if  the  cestui 
que  trust  receive  the  money  from  the  trustee ;(»)  but  not  if  he  merely 
receive  the  annual  income  though  for  a  considerable  length  of  time.(y) 

(0)  See  Benson  v.  Benson,  1  P.  W.  130  ;  Edwards  v.  Countess  of  Warwick,  2  P. 
W.  IT-i  ;  Maynwaring  v.  Jlaynwaring,  3  Atk.  413. 

(p)  See V.  Marsh,  cited  Cliaplin  v.  Horner,  1  P.  W.  485,  note(t) ;  Mayn- 
waring V.  Maynwaring,  3  Atk.  413  ;  Henley  v.  Webb,  5  Mad.  407. 

[q)  See  Pulteney  v.  Darlington,  1  B.  C.  C.  238  ;  Van  v.  Barnett,  19  Ves.  109; 
Bradish  v.  Gee,  Arab.  229  ;  Dixon  v.  Gayfere,  17  Beav.  433. 

(r)  Daviesv.  Ashford,  15  Sim.  42  ;  and  see  Padbury  v.  Clark,  2  Mac.  &  Gor.  298. 

(5)  See  Ashby  v.  Palmer,  1  Mer.  301  ;  Dixon  v.  Gayfere,  17  Beav.  433  ;  Gnes- 
bach  V.  Fremantle,  17  Beav.  314. 

(t)  Kirkman  v.  Miles,  13  Ves.  338  ;  Cookson  v.  Cookson,  12  CI.  &  Fin.  121  ;  but 
see  Crabtree  v.  Bramble,  3  Atk.  G88  ;  Inwood  v.  Twyue,  2  Ed.  148. 

(?/.)  Pulteney  v.  Lord  Darlington,  1  B.  C.  C.  238,  per  Lord  Thurlow ;  Trafford 
V.  Boehm,  3  Atk.  440  ;  and  see  Rook  v.  Worth,  1  Ves.  461. 

(v)  Gillies  v.  Longlands,  4  De  Gex  &  Sm.  372. 


646       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

*It  was  determined  by  Lord  Harcourt  that  a  cestui  que  trust 
[*824]  j^^^  divested  money  of  its  real  quality  by  causing  the  securities 
to  be  chano-ed,  and  the  trust  to  be  declared  to  himself  and  his  executors  ; 
for  this,  he  observed,  was  tantamount  to  saying  the  money  should  not  go 
to  the  heir  -Aw)  and  vice  versa,  where  land  was  to  be  converted  into 
money,  it  was  held  by  Lord  Hardwicke,  that  a  lease  by  the  cestui  que 
trust  reserving  a  rent  to  her  heirs  and  assigns,  was  evidence  of  an  inten- 
tion to  continue  the  property  as  real  estate. (x)  To  constitute  an  act  of 
election  it  is  not  necessary  that  the  person  entitled,  as  for  instance,  to 
money  to  be  laid  out  on  land,  should  know  that  but  for  the  act  of  election 
it  would  pass  as  land,  but  it  is  suflSicient  if  the  court  can  collect  the 
intention  that  with  or  without  such  knowledge  he  meant  the  money  to 
be  dealt  with  and  treated  as  money.(^) 

A  person  may  express  his  election,  even  by  parol.  This,  at  least,  was 
the  opinion  of  Lord  Macclesfield, (z)  and  apparently  was  actually  decided 
in  the  case  of  Chaloner  v.  13utcher,(a)  in  which,  the  husband  having 
declared  the  money  should  not  be  laid  out  in  land,  the  court  held,  that, 
if  the  question  concerned  the  right  of  a  third  person,  the  declarations  of 
the  husband  ought  not  to  be  admitted  ;  but,  as  it  was  between  his  per- 
sonal and  real  representative,  they  should  be  read.  And  both  Lord 
Thurlow,(&)  and  Lord  Eldon,fc)  seem  to  have  lent  their  sanction  to  the 
same  doctrine,  so  that  an  ohiter  dictiim  of  Lord  Hardwicke  to  the  con- 
trary,(fZ)  though  supported  by  so  illustrious  a  name,  must  be  considered 
as  overruled. 

Where  money  bore  the  notional  impress  of  realty,  the  testator  might 
have  bequeathed  it  as  so  much  money  to  be  laid  out  in  land,  and  the 
r*S9^n  ^"^^^^7  would  have  passed,  though  the  will  was  not  attested  *ac- 
L  "^  -I  cording  to  the  Statute  of  Frauds  ;(e)  the  will  operated  first  by  way 
of  election,  and  then  by  way  of  bequest.  Now  by  the  late  Wills  Act(/) 
the  same  formalities  are  required  for  the  testamentary  disposition  of  both 
real  and  personal  estate. 


SECTION  IL 

THE   ACT    OF    THE   TRUSTEE    SHALL    NOT   ALTER    THE    CESTUl'S  QUE 
TRUST  ESTATE. 

At  latv  the  trustee  is  the  absolute  proprietor  of  the  land  or  fund,  and 

(w)  Lingen  v.  Sowray,  1  P.  W.  172  ;  and  see  Cookson  v.  Cooksoa,  12  CI.  &  Fin. 
121 ;  Harcourt  v.  Seymour,  2  Sim.  N.  S.  12. 

(x)  Crabtree  v.  Bramble,  3  Atk.  680,  see  688,  689 ;  and  see  Griesbach  v.  Fre- 
mantle,  17  Beav.  314. 

(y)  Harcourt  v.  Seymour,  2  Sim.  N.  S.  12,  see  p.  46. 

(z)  Edwards  v.  Countess  of  Warwick,  2  P.  W.  174. 

(a)  Cited  Crabtree  v.  Bramble,  3  Atk.  685.  ^ 

(b)  Pulteney  v.  Darlington,  1  B.  C.  C.  237. 

(c)  Wheldale  v.  Partridge,  8  Ves.  236.  (d)  Bradish  v.  Gee,  Amb.  229. 
(e)  See  the  cases  cited,  Lechmere  v.  Earl  of  Carlisle,  3  P.  ^Y.  221,  note  (C) ;  and 

see  Pulteney  v.  Darlington,  1  B.  C.  C.  235,  236. 
(/)  7  W.  4,  and  1  Yict.  c.  26. 


MAXIMS    OF    EQUITY,    ETC.  647 

therefore  may  exercise  any  control  or  dominion  over  it — may  convert 
realty  into  personalty,  or  personalty  into  realty  ;  but  equity,  which  regards 
a  trustee  as  a  mere  instrument  for  the  execution  of  the  trust,  will  not 
permit  the  interest  of  the  cestui  que  trust  to  be  affected  by  any  act  of 
misconduct,  but,  as  often  as  any  wrongful  conversion  is  made,  will  transfer 
to  the  new  interest  the  quality  and  character  of  the  old — will  treat  real 
estate  as  personal,  and  personal  as  real,  as  the  circumstances  of  the  case 
may  require.  But  of  course  where  a  power  (as  a  power  of  sale)  is  given 
to  a  trustee,  the  mere  circumstance  that  the  exercise  of  it  may  vary  the 
rights  of  the  cestuis  que  trust  will  not  be  allowed  to  fetter  the  free  action 
of  the  trustee. (/) 

Where  the  cestui  que  trust  is  sui j\iris,  every  change  in  the  nature  of 
the  property  made  without  the  authority  of  the  beneficial  owner,  must  in 
general  be  considered  a  misfeasance ;  but  with  respect  to  lunacy  and 
infancy  it  is  necessary  that  some  distinctions  should  be  taken. 

It  has  been  laid  down  as  the  general  rule  in  lunacy,  that  the  court  will 
not  alter  the  condition  of  the  lunatic's  property  to  the  prejudice  of  his 
successors  ;  but  the  maxim  must  be  received  with  the  qualification,  except 
it  he  for  the  benefit  of  the  lunatic  himself. (^g)  The  chancellor  takes  the 
advice  and  assistance  of  the  presumptive  next  of  kin  and  presumptive 
heir-at-law  in  the  care  and  management  of  the  property  ;(/t)  but  through 
all  the  cases  runs  this  prevailing  principle — that  *the  object  of  r^onn-j 
attention  is  exclusively  and  entirely  the  interest  of  the  lunatic,  L  J 
without  any  regard  to  those  who  may  have  eventual  rights  of  succes- 
sion. (*) 

"  Nothing,"  said  Lord  Loughborough,  "  would  be  more  dangerous  or 
mischievous  than  for  the  court  to  consider  how  it  would  affect  the  repre- 
sentatives :  there  would  always  be  among  them  an  emulation  of  each 
other,  and  their  speculations,  if  the  administrator  were  to  engage  in  them, 
would  mislead  his  attention,  and  confine  his  observation  as  to  the  interest 
of  the  only  person  he  is  bound  to  protect ;  there  would  be  a  continued 
running  account  between  the  personal  and  real  estates  ;  the  chancellor 
would  be  perpetually  looking  to  the  right  or  left,  and  the  interest  of  the 
lunatic  would  be  committed  in  favour  of  those  who  have  no  immediate 
interest,  and  whose  contingent  interests  are  left  to  the  ordinary  course  of 
events."(^-) 

Upon  this  principle,  where  a  lunatic  was  seised  ex  parte  paternd  of 
estate  A.,  and  ex  parte  maternd  of  estate  B.,  and  the  latter  was  subject 
to  a  mortgage,  the  money  arising  from  a  fall  of  timber  upon  A.  was 
directed  to  be  applied  in  discharge  of  the  mortgage  upon  B. ;  and  upon 
a  question  between  the  respective  heirs  it  was  held,  that  the  representa- 

(/)  Lantsbery  v.  Collier,  2  Kay  &  Johns,  709. 

(ff)  Ex  parte  Grimstone,  cited  Oxenden  v.  Lord  Compton,  4  B.  C.  C.  235,  note, 
per  Lord  Apsley. 

(h)  Ex  parte  Phillips,  19  Ves.  123,  per  Lord  Eldon. 

(ij  Oxenden  v.  Lord  Compton,  2  Ves.  jun.  72  ;  and  S.  C.  4  B.  C.  C.  233,  per 
Lord  Thurlow  ;  and  see  Ex  parte  Bromfield,  1  Ves.  jun.  4G2 ;  Ex  parte  Grimstone, 
Amb.  708  ;  S.  C.  cited  2  Ves.  jun.  75,  note  (x),  and  4  B.  G.  G.  235,  note  ;  Ex  parte 
Phillips,  19  Ves.  123  ;  Dormers  case,  2  P.  W.  2G5  ;  Ex  parte  Chumley,  1  Ves.  jun. 
297  ;  Ex  parte  Baker,  6  Ves.  8. 

(k)  Oxenden  v.  Lord  Compton,  2  Ves.  jun.  72,  73  ;  S.  C.  4  B.  C.  C.  233,  234. 


(548       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

tive  who  succeeded  to  A.  was  not  entitled  to  any  recompense  from  the 
representative  who  inherited  B.(Z) 

So,  if  the  lunatic  be  considerably  indebted,  and  it  appears  his  main- 
tenance would  be  better  provided  for,  and  his  advantage  promoted,  by 
the  sale  of  a  real  estate  inconvenient  and  ill-conditioned,  instead  of 
exhausting  the  personalty,  the  court,  on  a  proper  representation  of  the 
case,  would  have  no  difficulty  in  making  an  order  to  that  eiFect.(m) 

So,  timber  which  ought  to  be  cut  on  a  lunatic's  estate  may  be  felled 
r*Q97n  by  the  direction  of  the  court,  and  the  proceeds  may  *either  be 
L '  ^" '  J  applied  to  the  redemption  of  the  land-tax,  or  payment  of  debts, (») 
or  any  other  purpose  which  the  true  interest  of  the  lunatic  may  require; 
or  if  not  wanted  for  any  particular  purpose,  will  go  to  the  next  of  kin  as 
personalty,  and  not  to  the  heir  as  part  of  the  realty. (o) 

Where  the  lands  of  the  lunatic  are  in  mortgage,  and  that  whether  they 
have  descended  to  him  subject  to  the  charge,(p)  or  the  debt  is  the  luna- 
tic's own, (5)  the  chancellor,  not  ex  necessitate,  but  feeling  it  to  be  pru- 
dent when  the  personal  estate  can  afford  to  disincumber  the  real  estate,(>-) 
will  order  the  requisite  sum  to  be  applied ;  and  the  next  of  kin  after  the 
lunatic's  decease  will  have  no  lien  upon  the  real  estate  for  the  amount 
expended. 

So,  if  it  be  necessary  for  the  interest  of  the  real  estate  to  bring  an 
action  of  trespass,  resort  may  be  had  to  the  lunatic's  personal  fund.(.s) 

And  by  the  same  rule  the  money  of  the  lunatic  may  be  laid  out  in 
improvements  -Jt)  but  here  the  chancellor  must  act  tanquam  honus pater- 
familias, taking  every  opportunity  of  ameliorating  the  estate  by  fair  and 
ordinary  means,  such  as  draining,  inclosures,  &c.,(it)  erecting  a  fire- 
engine  for  the  purpose  of  working  a  coal-mine, (v)  but  must  not  engage 
in  risks  and  dangerous  adventures. (ic)  And  of  course  the  personalty 
may  be  drawn  upon  for  necessary  expenses,  as  repairs,(a')  fines  for  re- 

(/)  Ex  parte  Phillip?,  19  Ves.  123,  per  Lord  Eldon. 

(m)  Ex  parte  Phillips,  19  Ves.  124,  per  Lord  Eldon. 

(n)  Ex  parte  Phillips,  19  Ves.  119;  Bevan's  case,  cited  Ex  parte  Bromficld,  1 
Ves.  jun.  455,  457. 

(0)  Ex  parte  Bromfield,  1  Ves.  jun.  453;  S.  C.  3  B.  C.  C.  510;  Oxenden  v. 
Compton,  2  Ves.  jun.  69;  S-  C.  4  B.  C.  C.  231  ;  Shelly's  case,  cited  1  Ves.  jun. 
437  ;  Ex  parte  Phillips,  19  Ves.  124,  per  Lord  Eldon.  The  dictum  in  Marquis  of 
Anandale  v.  Marchioness  of  Anandale,  2  Ves.  384,  must  be  considered  as  over- 
ruled. 

{p)  Dennis  v.  Badd,  cited  Winchelsea  v.  Norcliffe,  1  Vern.  436  ;  but  see  Weld 
V.  Tew,  Beat.  266. 

{q)  Ex  parte  Grimstone,  Amb.  706 ;  S.  C.  cited  Oxenden  v.  Lord  Compton,  4 
B.  C.  C.  234  ;  Dormer's  case,  2  P.  W.  262. 

{r)  Oxenden  v.  Lord  Compton,  2  Ves.  jun.  74,  per  Lord  Thurlow. 

(«)  Oxenden  v.  Lord  Compton,  2  Ves.  jun.  72,  per  Lord  Loughborough. 

(0  Sergeson  v.  Sealev,  2  Atk.  414,  per  Lord  Hardwicke ;  Dormer's  case,  2  P. 
W.  262. 

(m)  See  Justice  De  Grey's  argument  in  Ex  parte  Grimstone,  cited  Oxenden  v. 
Lord  Compton,  2  Ves.  jun.  75,  note. 

{v)  Oxenden  v.  Lord  Compton,  2  Ves.  jun.  73. 

(w)  Oxenden  v.  Lord  Compton,  2  Ves.  jun.  73,  per  Lord  Loughborough. 

{x)  Sergeson  v.  Sealey,  2  Atk.  414,  per  Lord  Hardwicke  ;  Ex  parte  Grimstone, 
Amb.  708  ;  S.  C.  cited  Oxenden  v.  Lord  Compton,  4  B.  C.  C.  237,  note,  per  Lord 
Apsley ;  2  Ves.  jun.  72,  per  Lord  Loughborough  ;  Newport's  case,  cited,  lb.  ;  la 
re  Badcock,  4  M.  &  Cr.  440.   But  it  was  said  in  this  case,  that  "  if  the  money  were 


MAXIMS    OF    EQUITY,    ETC.  649 

newals  *of  leases,  or  admissions  to  copyliolcls.(j/)  But  where  tlie  pgpg-i 
committees  of  a  lunatic,  who  were  entitled  to  the  estate  themselves  L  "'''J 
after  his  death,  laid  out  a  sum  in  purchasing  timber  for  repairs,  when 
they  ought  to  have  cut  timber  on  the  estate.  Lord  Hardwicke  said,  that, 
having  done  so  merely  to  serve  their  own  interest,  they  should  make  good 
the  disbursement  to  the  lunatic's  next  of  kin. (z) 

In  the  preceding  cases  the  conversion  has  been  for  the  clear  benefit  of 
the  lunatic,  but  in  general  the  court  will  not  lightly  change  the  condition 
of  the  property,  but  will  only  act  on  pressing  and  urgent  occasions  :(a) 
it  will  interfere  with  great  caution,  and  do  nothing  that  is  unnecessary 
or  uncalled  for. (?y)  The  court  will  not  huy  and  sell  tor  the  lunatic  ;(c) 
and,  therefore,  if  the  committee  of  the  lunatic  wantonly,  and  of  his  own 
head,  lay  out  money  upon  land,  or  turn  land  into  money,  the  court  will 
not  suffer  such  fraudulent  mangament  to  affect  the  rights  of  the  repre- 
sentatives,(f7)  but  will  transfer  to  the  heir  what  ought  to  have  remained 
real  estate,  and  to  the  next  of  kin  what  ought  to  have  remained  personal 
estate. (e^  However,  if  timber  be  cut  down,  not  by  a  committee  in  breach 
of  his  duty,  but  by  a  stranger  tortiously,  then,  as  there  is  no  abuse  of 
confidence,  the  heir  has  no  equity,  and  *the  property  of  the  tim-  r:i.g29-| 
ber,  like  a  windfall,  will  belong  to  the  executor. (/)  L     ""  J 

Next,  as  to  infants. 

In  Ex  parte  Bromfield,  Lord  Thurlow,  without  having  examined  the 
authorities,  said  he  could  not  distinguish  between  lunatics  and  infants  •,{g) 
but,  when  the  cause  came  on  again,  and  he  had  maturely  considered  the 
subject,  he  never  once  hinted  at  the  existence  of  such  a  doctrine  ;(/<) 
and,  indeed,  until  the  late  Wills  Act,  there  was  a  very  broad  distinction 
between  the  two  cases;  for,  if  a  lunatic  recovered,  which  in  contempla- 
tion of  law  is  always  possible,  he  had  precisely  the  same  power  of  dispo- 
sition, though  by  different  modes,  over  one  species  of  property  as  over 
the  other  ;(t)  but  an  infant,  while  he  could  have  bequeathed  personal 
estate  under  the  age  of  twenty-one,  could  not  have  devised  a  freehold 

laid  out  in  a  purchase  of  land,  or,  what  was  the  same  thing,  in  building  a  farm- 
house, it  would  be  right  that  the  sum  so  laid  out  should  retain  its  character  of 
personalty. 

[y)  Justice  De  Grey's  argument  in  Ex  parte  Grimstone,  supra ;  but  see  Degg's 
case,  cited  Oxenden  v.  Lord  Compton,  4  B.  C.  C.  235,  note. 

(z)  Ex  parte  LudloTV,  2  Atk,  407. 

(ff)  Ex  parte  Bromfield,  1  A^es.  jun.  463,  and  3  B.  C.  C.  515,  per  Lord  Thurlow. 

{b)  Oxenden  v.  Lord  Compton,  2  Ves.  jun.  76,  and  4  B.  C.  C.  238,  per  Lord 
Loughborough. 

(c)  Oxenden  v.  Lord  Compton,  2  Ves.  jun.  73,  per  Lord  Loughborough;  Ex 
parte  Grimstone,  cited  in  Oxenden  v.  Lord  Compton,  4  B.  C.  C.  235,  note,  per 
Lord  Apslev;  Sergeson  v.  Sealey,  2  Atk.  414,  per  Lord  Hardwicke. 

{d)  See  Ex  parte  Bromfield,  1  Ves.  jun.  462. 

[e)  Anoa.  case,  2  Freem.  114;  Awdley  v.  Awdley,  2  Vern.  192;  Marquis  of 
Anandale  v.  Marchioness  of  Anandale,  2  Ves.  384,  per  Lord  Hardwicke ;  and  see 
In  re  Badcock,  4  M.  &  Cr.  440. 

(/)  Anon,  case,  cited  Ex  parte  Bromfield,  1  Ves.  jun.  462,  and  3  B.  C.  C.  515, 
per  Lord  Thurlow. 

{g)   1  Ves.  jun.  461  ;  S.  C.  3  B.  C.  C.  515. 

{h)  Oxenden  v.  Lord  Compton,  2  Ves.  jun.  69 ;  S.  C.  4  B.  C.  C.  231. 

(i)  See  Ex  parte  Phillips,  19  Ves.  123. 

April,  1858.— 42 


650 


LEW  IN    ON    THE    LAW    OF    TRUSTS,    ETC. 


until  he  had  attained  that  age.(A-)  The  court,  therefore,  would  not  allow 
an  infant's  estate  to  be  converted  from  one  species  of  property  into  ano- 
ther, not  from  any  tenderness  to  the  rights  of  the  representatives,  but 
from  a  regard  to  the  circumstances  and  capacity  of  the  infant  himself. 
Should  his  money  have  been  turned  into  land,  he  would  have  lost  a 
power  of  disposition  which  the  law  permitted  him  to  exercise  :  should 
land  have  been  turned  into  money,  he  would  indirectly  have  gained  a 
power  which  the  policy  of  the  law  had  forbidden  him.(?) 

Upon  the  same  principle,  had  timber  been  cut  an  an  infant's  estate, 
the  proceeds,  and,  it  seems,  the  accumulation  of  the  proceeds,(m)  would 
„-,  have  continued  part  of  the  realty,  and  have  ^descended  to  the 
L  J  heir.(?i)  But  a  distinction  was  taken  in  Mason  v.  3Iason,(o)  (and 
Sir  Thomas  Clarke  said  he  allowed  it,)(p)  between  the  case  of  an  infant 
tenant  in  fee  and  an  infant  tenant  in  tail :  that  in  the  former  case  the 
proceeds  of  the  timber  should  be  taken  as  realty,  inasmuch  as  the  infant 
was  thus  at  all  events  absolutely  entitled ;  but  in  the  latter  case,  as  the 
proceeds  might,  if  impressed  with  the  character  of  realty,  become  vested 
in  the  remainderman,  the  court  would  treat  the  fund  as  personalty,  and 
give  it  to  the  infant's  executors. 

Again,  if  an  infant's  money  had  been  applied  to  pay  off  a  charge,  or 
redeem  a  mortgage  affecting  his  real  estate,  it  seems  the  better  opinion 
(though  some  old  authorities  are  against  it,)  that  the  sum  so  invested 
would  still  have  been  looked  upon  as  part  of  the  personalty.  (5-) 

But  necessary  expenses,  though  affecting  the  infant's  lands,  were 
allowed  to  be  thrown  upon  the  personal  fund,  as  disbursements  for  re- 
pairs,(r)  for  keeping  up  a  house,  &c.(s) 

So  in  Vernon  v.  Vernon, (;)  where  an  estate  was  devised  to  an  infant 
in  consideration  of  his  paying  the  sum  which  the  original  purchase  had 
cost,  it  was  held,  that  the  amount,  being  a  necessary  outlay,  had  proper- 
ly fallen  upon  the  personalty,  and  the  next  of  kin  were  not  entitled  to 
compensation. 

{k)  See  Earl  of  Winchelsea  v.  NorcliflFe,  1  Vern.  437,  in  which  case  the  distinc- 
tion appears  first  to  have  been  noticed. 

[I)  Ware  V.  Polhill,  11  Ves.  278,  and  Ex  parte  Phillips,  19  Ves.  122,  per  Lord 
Eldon;  Ashburton  v.  Ashburton,  6  Ves.  6;  Sergeson  v.  Sealey,  2  Atk.  413,  and 
Rook  V.  Worth,  1  Ves.  461,  per  Lord  Hardwicke  :  Witter  v.  Witter,  3  P.  W.  99; 
but  see  Earl  of  Winchelsea  v.  Norcliffe,  1  Vern.  4i35  ;  Inwood  v.  Twyne,  2  Ed. 
152  ;  Ex  parte  Bromfield,  1  Ves.  jun.  461. 

(to)  See  Ex  parte  Bromfield,  1  Ves.  .jun.  454. 

(II)  Tullet  V.  TuUet,  1  Dick.  322  ;  S.  C.  Amb.  370  ;  Mason  v.  Mason,  cited  lb. 
371 ;  Ex  parte  Phillips,  19  Ves.  124,  per  Lord  Eldon;  and  see  Rook  v.  Worth,  1 
Ves.  461  ;  but  see  Ex  parte  Bromfield,  3  B.  C.  C.  516. 

(0)  Ubi  supra.  {p)  Tullet  v.  Tullet,  Amb.  371. 

{q)  Ex  parte  Bromfield,  3  B.  C.  C.  516,  per  Lord  Thurlow ;  Tullet  v.  Tullet,  1 
Dick.  323,  per  Sir  T.  Clarke  ;  Seys  v.  Price,  9  Mod.  220,  per  Lord  Hardwicke  ; 
Dowling  V.  Bcllon,  1  Flan.  &  Keller,  462;  but  see  2  Freem.  114,  c.  126  ;  Ex  parte 
Grimstone,  Amb.  708  :  Palmes  v."  Danby,  Pr.  Ch.  137  ;  Zoach  v.  Lloyd,  cited 
Awdley  v.  Awdley,  2  Vern.  192  ;  as  to  Dennis  v.  Badd,  cited  lb.  193,  see  Earl  of 
Winchelsea  v.  Norcliffe,  1  Vern.  436. 

(r)  Ex  parte  Grimstone,  cited  Oxenden  v.  Lord  Compton,  4  B.  C.  C.  235,  note, 
per  Lord  Apsley. 

(*)  Ex  parte  Grimstone,  Amb.  708,  ^er  eundem. 

{t]  Cited  in  Ex  parte  Bromfield,  1  Ves.  jun.  456. 


STATUTORY  ENACTMENTS,  ETC.  651 

There  were  some  cases  to  which  the  reason  for  preserving  the  original 
character  of  the  property  did  not  apply.  Thus,  if  *an  infant  r=,:<^3-^-| 
was  seised  of  a  lease  for  lives  ex  parte  mateniCi,  and  the  guardian  L  J 
took  a  new  lease  to  the  infant  and  his  heirs,  the  substituted  lease  would 
not  descend  in  the  maternal  line,  but,  as  a  new  acquisition,  would  go  to 
the  heirs  on  the  part  of  the  father  ;(w)  but  it  being  perfectly  immaterial 
to  the  infant  himself  whether  the  seisin  was  in  the  paternal  or  maternal 
line,  the  representative  ex  parte  maternd  had  no  equity  against  the 
representative  ex  parte  jmfernd. 

Now,  by  the  late  Wills  Act(w)  an  infant  has  no  greater  testamentary 
power  over  personal  than  over  real  estate,  and  it  would  seem,  therefore, 
that  in  all  cases  the  principles  which  have  been  stated  with  reference  to 
lunatics  must  henceforth  be  regarded  as  applicable  equally  to  infants. 


*CHAPTER    XXVIII.  [*832] 

OF  STATUTORY  ENACTMENTS  FOR  REMEDYING  THE  INCONVENIENCES 
ARISING  FROM  THE  DISABILITY  OF  THE  TRUSTEE  AND  OTHER  DE- 
FECTS  CONNECTED    WITH   THE    STATE   OF    THE    TRUSTEESHIP. 

It  frequently  happens  that  the  cestui  que  trust  is  in  equity  entitled  to 
call  for  a  conveyance,  but  from  the  disability  of  the  trustee,  or  some  other 
accidental  circumstance,  the  object  of  the  party  cannot  by  the  ordinary 
course  of  law  be  carried  into  effect.  To  obviate  the  prejudice  to  which 
in  these  cases  the  interest  of  the  cestui  que  trust  might  be  liable,  the 
leo-islature  has  from  time  to  time  interposed  its  aid  by  remedial  statutes. 

The  first  act  of  the  kind  was  the  7  Anne,  c.  19,  which  provided  for 
the  case  of  infancy  in  respect  of  lands.  It  was  thereby  declared  that 
«  it  should  be  lawful  for  infants  having  estates  in  lands  only  in  trust  for 
others,  or  by  way  of  mortgage,  by  the  direction  of  the  Court  of  Chancery 
or  Exchequer,  by  order  made  on  the  petition  of  the  cestui  que  trust, 
mortgagor,  or  other  person  interested,  to  convey  the  said  lands  as  the  Court 
of  Chancery  or  Exchequer  should  direct." 

This  statute  was  held  to  extend  neither  to  constructive  trusts,(a) 
(except,  perhaps,  after  a  decree  had  established  the  right,)(Z*)  nor  to  cases 
where  the  infant  himself  possessed  an  interest,(r')  nor  where  any  personal 

(m)  Mason  v.  Day,  Pr.  Cb.  319 ;  Pierson  v.  Shore,  1  Atk.  480. 

(v)  1  W.  4,  and  1  V.  c.  26. 

(a)  Goodwyn  v.  Lister,  3  P.  W.  387  :  Anon,  case,  cited  lb.  389,  note  (A) ;  Jer- 
don  V.  Foster,  cited  Sanders  on  Uses,  356,  4tb  Edit.  ;   Sikes  v.  Lister,  5  Vin.  Ab.» 
541 ;  In  re  Janaway,  7  Price,  679  ;  but  see  Ex  parte  Vernon,  2  P.  W.  549  ;  Smith 
V.  Hibbard,  2  Dick.  730. 

(6)  Price  v.  Oneby,  cited  Fearne's  P.  W.  239  ;  Hawkins  v.  Obeen,  2  Ves.  559. 

(c)  Hawkins  v.  Obeen,  ubi  supra;  Ex  parte  Sergison,  4  Ves.   147;  Ex  parte 

Tutin,  3  V.  &  B.  149;  v.  Handcock,  17  Ves.  384,  per  Lord  Eldon  ;  and  see 

Ex  parte  Bellamy,  2  Cox,  422  ;  Ex  parte  Carter,  2  Dick.  609. 


fj52  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

duty  was  imposed  upon  the  *trustee,((Z)  though  all  the  cesfins 
[*833]  ^^^^  ^^^^^^  j^jgj^j.  i^g  billing  to  concur. (e)  The  act  directing  the 
application  to  be  made  \)-^ lietition,  the  court  considered  such  an  interlo- 
cutory method  to  indicate  an  intention  of  remedying  only  the  i^lainest 

cases  of  trust. 

The  next  statute  was  the  4  Geo.  2,  c.  10,  which  provided  for  the  disa- 
bility of  lunacy  in  respect  of  lands.  It  was  thereby  enacted  that  <<  it 
should  be  lawful  for  idiots,  lunatics,  and  persons  non  compos  having 
estates  in  lands  only  in  trust  for  others,  or  by  way  of  mortgage,  or  for 
their  committees,  by  the  direction  of  the  lord  chancellor  on  petition  to 
convey  the  lands  whereof  such  idiots,  lunatics,  or  persons  non  compos 
should  be  seised  or  possessed  on  trust  or  by  way  of  mortgage,  as  the  lord 
chancellor  should  direct." 

This  statute,  as  it  followed  the  language,  so  it  received  the  interpreta-* 
tion  of  the  statute  of  Anne  :  and  it  was  held  not  to  apply  to  constrnctive 
trusts,  or  to  cases  where  the  trustee  was  concerned  in  interest,  or  had 
any  duty  to  perform. (/)  Nor  did  the  act  extend  to  a  lunatic  who  had 
not  been  expressly  found  such  by  inquisition. (^) 

Hitherto  the  remedial  enactments  had  reference  to  lands  only  but  by 
the  36  Geo.  3,  c.  90,  the  legislature  provided  for  similar  inconveniences 
in  respect  of  stock.  The  statute  declared,  that  <'  when  trustees  of  stock 
or  the  personal  representatives  of  such  persons  deceased  should  be  out  of 
the  jurisdiction  or  not  amenable  to  the  process  of  the  court,  or  should 
be  hanJcrupts  or  lunatics,  or  should  refuse  to  transfer  the  stock,  or 
L  -I  *it  should  be  uncertain  or  unhnown  whether  they  were  living  or 
dead,(h)  it  should  be  lawful  for  the  Court  of  Chancery  or  Exchequer  in 
any  cause  depcndinp;  to  direct  or  order  a  transfer  of  such  stock." 

This  statute  also  was  held  not  to  apply  to  lunatics  who  had  not  been 
found  such  by  inquisition  ;(t)  a  defect  which,  however,  was  afterwards 
remedied  by  1  &  2  Geo.  4,  c.  114. 

The  enactments  of  the  preceding  statutes  were  all  consolidated  and 
amended  by  the  6  Geo.  4,  c.  74,  and  provision  was  further  made  for  the 
case  of  a  trustee  possessing  an  interest,  or  having  a  duty  to  perform  ;  but 
still  the  court  had  no  jurisdiction  where  the  trust  was  constructive,{1c) 
though  it  seems  the  bill  originally  contained  such  a  clause,  but  Lord 
Redesdale  objected  to  it  strongly,  and  it  was  struck  out.(?) 

{d)  Ex  parte  Tutin,  3  V.  &  B.  149  ;  Riggs  v.  Sykes,  1  Dick.  400.  But  in  Attor- 
ney-General V.  Porafret,  2  Cox,  221,  Lord  Alvanley  held,  that  where  new  trustees 
were  duly  appointed,  the  circumstance  of  a  duty  to  perform  would  not  take  the 
case  out  of  the  statute,  for  by  the  conveyance  to  the  new  trustees  the  duty  as  re- 
garded the  old  trustees  would  cease,  and  be  laid  upon  others  :  but  if  there  were  no 
appointment  of  new  trustees,  then  the  statute  would  not  apply. 

(e)  Ex  parte  Chasteney,  1  Jac.  56. 

(/)  Ex  parte  Currie,  1  J.  &  W.  642 ;  Ex  parte  Tutin,  3  V.  &  B.  149. 

(g)  Ex  parte  Gillam,  2  Ves.  jun.  587  ;  and  see  Ex  parte  Otto  Lewis,  1  Ves.  298. 

(A)  It  is  almost  unnecessary  to  observe,  that  in  the  case  of  infancy  no  remedy  was 
needed  in  respect  of  stock  ;  for  if  the  executor  of  a  trustee  happened  to  be  an  in- 
fant, administration  might  have  been  granted  to  a  stranger  durante  minoritate. 

(i)  See  Sylva  v.  Da  Costa,  8  Ves.  316  ;  Simms  v.  Naylor,  4  Ves.  360  ;  West  v. 
Ayles,  1  Turn.  &  Russ.  330. 

{k)  King  V.  Turner,  2  Sim.  549;  Dew  v.  Clarke,  4  Russ.  511;  In  re  Moody, 
T:T.ml.  4.  (;)  Dew  v.  Clarke,  4  Russ.  514. 


STATUTORY  ENACTMENTS,  ETC.  653 

This  statute  was  afterwards  repealed,  and  the  provisions  of  it,  with 
material  alterations,  additions,  and  improvements,  were  re-enacted  by 
Lord  St.  Leonards'  Act,  the  11  G.  4,  and  1  W.  4,  c.  60.  This  last 
statute  has  also  since  been  repealed,  but  as  its  enactments  must  still  be 
referred  to  in  the  case  of  titles  derived  under  it,  the  leading  provisions 
together  with  the  more  important  decisions  upon  them  will  be  shortly 
stated. 

The  third,  fourth,  and  fifth  sections  related  exclusively  to  lunatics, 
idiots,  persons  of  unsound  mind,  and  persons  incapable  of  managing  their 
affairs, (m)  who  were  trustees(n)  or  mortgagees.  By  the  third  and  fourth 
sections,  the  committee  of  the  estate(o)  of  a  lunatic,  idiot,  or  no n  com-pos, 
*might,  by  direction  of  the  lord  chancellor, [p)  convey  the  lands(5)  r*g35-| 
or  transfer  the  stock ;  and  by  the  fifth  section,  where  the  lunatic  L  J 
had  not  been  found  such  by  inquisition,  and  so  there  was  no  committee, 
the  lord  chancellor  might  appoint  a  person  to  make  the  conveyance  or 
transfer ;  but  not  if  any  sum  of  money  exceeding  700?.  was  payable  to 
the  lunatic. M 

The  sixth  section  remedied  the  disability  of  infancy  in  respect  of 
Ianch{s)  vested  in  infants  upon  trust  or  by  way  of  mortgage,(/)  and  ena- 
bled them  to  convey  under  the  direction  of  the  court,  such  conveyance 
to  be  as  valid  as  if  the  infants  were  adult. (w) 

im)  See  In  re  Wakeford,  1  Jones  &  Lat.  2  ;  In  re  Jones.  6  Jur.  545  ;  Walker,  1 
Cr.  &  Ph.  147. 

{n)  A  decree  for  sale  having  been  made  in  a  creditor's  suit,  the  tenant  for  liie 
(a  lunatic)  was  held  bj'  the  effect  of  the  decree  to  have  become  a  trustee  within 
the  act;  Re  Milfield,  2  Phill.  254;  5  Hare,  538.  And  see  Thomas  v.  Gwynne,  9 
Beav.  275 ;  and  the  cases  referred  to  at  note  (e),  p.  839. 

(o)  Not  an  ad  interim  committee  ;  Re  Poulton,  1  Mac.  &  Gor.  100. 

(|))  The  lord  chancellor  having  jurisdiction  in  respect  of  lunatics  and  idiots, 
not  as  presiding  over  a  court  of  equity,  but  by  virtue  of  an  authority  specially 
delegated  to  him  by  the  crown ;  a  vice-chancellor  could  neither  direct  the  refer- 
ence to  the  master  in  the  first  instance,  nor  make  the  final  order  ;  In  re  Shorrocks, 

1  M.  &  C.  31,  overruling  Anon,  case,  5  Sim.  322  ;  In  re  Mount,  12  L.  J.  N.  S.  Ch. 
;)5.  So,  what  had  been  found  in  another  court,  as  the  exchequer,  could  not  be 
adopted  by  the  lord  chancellor,  but  a  new  reference  must  have  been  directed.  In 
re  Brideaux,  2  M.  &  C.  G40. 

{q)  Bengal  government  notes  were  lands  as  defined  by  the  act ;  Re  Dyce 
Sombre,  1  Mac.  &  Gor.  101. 

(r)  See  Re  Sandford,  2  Hall.  &  Tw.  137. 

(s)  In  the  construction  of  former  acts,  it  was  held  that  lands  in  the  colonies, 
Ex  parte  Fenniliteau,  2  Dick.  569  ;  Ex  parte  Bosanquet,  lb.  540  ;  Ex  parte  Prosser, 

2  B.  C.  C.  325  ;  and  in  the  territories  of  the  East  India  Company  ;  Ex  parte 
Anderson,  5  Ves.  240;  and  in  Ireland,  Evelyn  v.  Forster,  8  Ves.  96  ;  were  includ- 
ed. By  sections  26  and  29  of  this  act  its  provisions  were  expressly  extended  to 
lands  abroad  within  the  queen's  dominions;  but  lands  abroad  out  of  the  queen's 
dominions  were  not  within  the  statute.     Price  v.  Dewhurst,  8  Sim.  617. 

(0  See  Prendergast  v.  Eyre,  LI.  &  G.  t.  Sugd.  11  ;  Re  Kent,  9  Sim.  501  ;  Ex 
parte  Ommaney,  10  Sim.  298  ;  Re  Barry,  2  Jones  &  Lat.  1  ;  Peyton  v.  M'Dermott, 
G  Ir.  Eq.  Rep.  220  ;  Goddard  v.  Macaulay,  6  Ir.  Eq.  Rep.  221. 

(?/)  As  the  conveyance  of  an  infant  under  the  act  would  only  be  as  effectual  as 
if  he  were  adult,  it  was  necessary  to  see  that  the  conveyance  would  be  effectual 
were  the  infant  of  age.  Thus,  before  the  abolition  of  fines  and  recoveries,  had  the 
trustee  devised  the  estate  to  an  infant  in  tail,  the  conveyance  must  have  been  by 
recovery  ;  Ex  parte  Johnson,  3  Atk.  559 ;  Ex  parte  Smith,  Amb.  624.  So,  if  the 
infant  had  been  a  feme  covert,  the  conveyance  must  have  been  by  fine  ;  Ex  parte 
Maire,  3  Atk.  479  ;  Ex  parte  Bowes,  3  Atk.  164.  When  fines  and  recoveries  were 
abolished,  the  assurance  must  have  been  attended  with  the  formalities  required  by 


(354       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

The  eio-hth  section  remedied  sundry  other  inconveniences  in 
[*8.j6J  ^^j^^  ^^gg  ^j  freeholds  (that  is,  of  freeholds  in  interest,  whether 
of  freehold  or  copyhold  tenure  ;)(v)  and  it  was  thereby  enacted,  that 
^  -,„  where  any  person  seised  of  land(%-)  upon  any  trust(cc)  *should  be 
L  'J  out  of  the  jurisdiction  or  not  amenable  to  the  process  of  the  court, 
or  it  should  be  uncertain,  v;here  there  ivere  several  trustees,  ivhich  of  them 
was  the  survivor,  or  it  should  be  uncertain  whether  the  trustee  last  knov:n 
to  have  been  seised{}/)  as  aforesaid  was  living  or  dead,  or  if  known  to  be 
dead  it  should  not  be  known  who  was  his  heir,{z)  or  if  any  trustee  seised 
as  aforesaid,  or  the  heir  of  any  such  trustee,  should  neglect  or  refuse  to 

the  Fines  and  Recoveries  Act ;    See  Radcliffe  v.  Eccles,   1  Keen,  130 ;  Penny  v. 
Pretor,  9  Sim.  135. 

(«)  The  second  section  defined  "lands"  to  include  real  property  oi any  tenure. 
But  as  to  copyholds  see  Queen  V.  Pitt,  10  Ad.  &  Ell.  272. 

(w)  An  estate  was  devised  to  the  use  of  the  poor  of  a  parish,  and  it  did  not 
appear  in  -whom  the  legal  estate  was  vested,  and  the  case  was  held  not  to  be 
within  the  act ;  Attorney-General  v.  Randies,  8  Beav.  185.  But  see  Re  Gore's 
Charity,  4  Drur.  &  W.  270. 

(x)  It  was  at  first  held,  that  this  did  not  include  a  complicated  trust;  Ex  parte 
Merry,  1  M.  &  K.  677  ;  but  the  12th  section  authorizing  the  court,  where  it  should 
be  proper,  to  direct  a  bill  to  be  filed  to  establish  the  right,  it  was  afterwards  ruled 
that  the  court  had  a  discretion  of  making  an  order  in  such  a  trust  upon  an  ex 
parte  application ;  In  re  De  Clifford,  2  M.  &  K.  624,  820. 

So  it  was  originally  the  opinion  of  the  court,  that  "  trust"  did  not  include  a 
viortgage ;  la  re  Goddard,  1  M.  &  K.  25  ;  Ex  parte  Payne,  6  Sim.  G45  ;  In  re  Stan- 
ley, 5  Sim.  320;  In  re  Dearden,  3  M.  &  K.  508  ;  and  see  Prendergast  v.  Ej're, 
Lloyd  &  Goold,  t.  Sugden,  11.  But  the  Escheat  and  Forfeiture  Act  (4  &  5  W.  4, 
c.  23,  s.  2,)  declaring,  that  "  where  any  person  seised  of  any  land  upon  any  trust 
or  by  way  of  mortgage  died  without  an  heir,  it  should  be  lawful  for  the  court  of 
chancery  to  appoint  a  person  to  convey  in  like  mianner  as  was  provided"  (by  the 
11  G.  4,"  and  1  W.  4,  c.  60,)  "in  case  such  trustee  or  7nortgagce  had  left  an  heir  and 
it  was  not  known  who  was  such  heir,"  it  was  held,  as  the  legislature  could  best 
interpret  its  own  provisions,  that  the  8th  section  of  the  act  did  extend  to  a  mort- 
gage ;  Ex  parte  Whitton,  1  Keen,  278 ;  In  re  Stanley,  7  Sim.  170  ;  In  re  Wilson,  8 
Sim.  393. 

A  supplemental  act  was  afterwards  passed  (1  &  2  V.  c.  69,)  the  effect  of  which 
was,  that  for  the  time  to  come  the  relief  was  confined  to  the  case  of  a  mortgagee 
dying  seised  without  having  had  possession,  and  where  the  mortgage  money  should 
have  been  or  should  be  paid ;  and  the  word  trust,  in  the  8th  section  of  Lord  St. 
Leonards'  Act,  was  restricted  from  being  construed  to  comprise  a  mortgage  ; 
Green  V.  Holden,  1  Beav.  207 ;  Spunner  v.  Walsh,  10  Ir.  Eq.  Rep.  214.  As  the 
statute  recited  only  the  8th  section  of  Lord  St.  Leonards'  Act,  it  is  presumed  it 
was  not  meant  to  repeal  \hQ  previous  sections  rel&img  to  mortgages,  and  apparently 
the  master  of  the  rolls  was  of  this  opinion  ;  see  Green  v.  Holden,  ubi  supra.  It  is 
remarkable  that  the  decisions  of  the  vice-chancellor  of  England,  In  re  Williams,  9 
Sim.  642,  and  In  re  Thompson,  12  Sim.  392,  though  the  latter  at  least  was  correct 
if  the  mortgagee  was  never  in  possession,  appear  to  have  been  made  without  refer- 
ence to  the  1  &  2  Vict.  c.  69. 

A  mortgagor  against  whom  a  decree  for  sale  was  taken  by  an  equitable  mortga- 
gee, became  thereby  a  trustee  for  sale,  and  if  he  went  out  of  the  jurisdiction  or  was 
of  unsound  mind  the  court  appointed  a  person  in  his  place  to  execute  a  convey- 
ance for  giving  effect  to  the  sale  :  King  v.  Leach,  2  Hare,  57;  Barfield  v.  Rogers, 
8  Jur.  229  ;  and  see  Hood  v.  Hall,  14  Jur.  127. 

And  when  the  mortgage  money  had  been  paid,  the  heir  of  the  mortgagee  was  a 
trustee  for  the  mortgagor,  and  a  petition  for  a  reconveyance  should  have  been  pre- 
sented not  by  the  executors  of  the  mortgagee,  but  by  the  mortgagor ;  In  re  Mani- 
fold, 4  Hare,  308. 

(y)  Qu.  if  this  was  applicable  to  the  seisin  of  the  husband  where  he  and  his 
wife  were  seised  in  right  of  the  wife;  see  Moore  v.  Vinten,  12  Sim.  161. 
(2)  See  In  re  Bishop  Gore's  Charities,  2  Conn.  &  Laws.  41 1. 


II 


STATUTORY  ENACTMENTS,  ETC.  655 

convey  such  lands  for  the  space  of  twenty-eight  days  next  after  a  proper 
deed  for  making  such  conveyance  shoidd  have  been  tendered  for  his 
execution  by,  or  by  an  agent  didy  authorized  by,  any  person  entitled  to 
require  the  same,{a^  it  should  be  lawful  for  the  court  to  appoint  a  person 
iu  the  place  of  the  trustee  or  heir  to  convey,  such  conveyance  to  be  as 
effectual  as  if  the  trustee  or  heir  had  made  and  executed  the  same. 

The  ninth  section  remedied  certain  inconveniences  relating  to  chattels 
real,  and  enacted  that  where  any  person  possessed  of  land  for  a  term  of 
years  upon  trust(i)  should  be  out  of  the  jurisdiction  or  not  amenable  to 
the  process  of  the  court,  or  it  ^should  be  uncertain  whether  the  r-^Qoo-\ 
trustee  last  known  to  have  been  possessed  as  aforesaid  should  be  *-  -> 
living  or  dead,(c^  or  if  any  trustee  as  aforesaid,  or  the  executor  of  any 
such  trustee,  should  neglect  or  refuse,  &c.,  (as  in  the  former  clause,)  it 
should  be  lawful  for  the  court  to  appoint  a  person  to  make  a  vicarious 
assignment  or  surrender,  such  assignment  or  surrender  to  be  as  valid  as 
if  made  by  the  trustee  or  executor. 

The  tenth  section  related  to  inconveniences  in  respect  of  stock,  and 
enacted,  that  where  any  person  in  whose  name  as  a  trustee  or  executor 
(either  alone  or  together  with  the  name  of  any  other  person,)  or  in  the 
name  of  whose  testator  (whether  as  a  trustee  or  beneficially,)(cZ)  any 
stock  should  be  standing,  or  any  other  person  who  should  otherwise  have 
power  to  transfer,  or  join  with  any  other  person  in  transferring,  any 
stock  to  which  some  other  person  should  be  beneficially  entitled,  should 

(fit)  The  tender  must  have  been  made  by  "  some  person  entitled  to  require  a 
conveyance.''  What  would  amount  to  such  a  tender  was  often  a  question.  A 
person  duly  nominated  a  new  trustee  under  a  power  for  that  purpose  was  entitled 
to  require  a  conveyance  to  give  effect  to  the  appointment ;  In  re  Law,  4  Beav.  509. 
And  if  the  court  decreed  a  sale  with  a  direction  that  all  necessary  parties  should 
join  in  the  conveyance  that  converted  the  owner  of  the  estate  into  a  trustee  for  the 
purposes  of  the  decree,  and  if  a  conveyance  settled  by  the  master  had  been  ten- 
dered to  him,  and  he  neglected  or  refused  to  execute  it  for  twentj'-eight  days,  the 
court,  on  the  petition  of  the  purchaser  or  other  person  interested,  ordered  a  person 
to  convey  in  the  place  of  the  party  so  neglecting  or  refusing:  Warburton  v.  Vaughan, 
4  Y.  &  C.  247;  Billing  v.  Webb,  1  De  Gex  &  Sm.  716;  Robinson  v.  Wood,  5 
Beav.  246.  Note,  The  refusing  trustee  need  not  and  ought  not  to  have  been 
served  with  the  petition ;  Re  Burntree  Building  Society,  16  Sim.  296;  and  see  In 
re  Bradburne,  12  L.  J.  N.  S.  Ch.  353. 

(b)  In  a  foreclosure  suit  by  an  equitable  mortgagee  of  leaseholds,  the  plaintiff 
having  obtained  a  decree  for  sale,  the  defendant,  the  mortgagor,  was  held  to  have 
been  thereby  converted  into  a  trustee  for  the  plaintiff;  King  v.  Leach,  2  Hare, 
57  ;  and  see  Re  Milfield,  2  Phil.  254. 

(c)  The  words  in  the  preceding  clause,  "  where  it  should  be  uncertain,  where 
there  were  several  trustees,  which  of  them  was  the  survivor,"  were  here  omitted ; 
for  in  respect  of  chattels  the  personal  representatives  of  both  the  trustees  might 
assign,  or  if  there  were  no  such  representatives,  administration  might  be  taken 
out  to  both.  It  was  not  intended  to  provide  by  the  act  for  any  case  which  could 
be  remedied  in  any  other  mode  ;  see  In  re  Anderson,  L.  &  G.  t.  Sugd.  28. 

(d)  A  person  was  an  executor  within  the  meaning  of  this  clause  before  probate, 
if  he  had  not  renounced  ;  see  Ex  parte  Winter,  5  Rus.  284. 

A  testator  gave  a  sum  of  consols  to  A.,  B.,  and  C,  in  trust  for  D.  for  life.  All 
the  trustees  died,  and  the  survivor  appointed  two  executors.  D.  applied  to  one  exe- 
cutor to  prove,  who  refused,  and  the  other  was  out  of  the  jurisdiction.  Held  to 
be  within  the  act;  Ex  parte  Hagger,  1  Beav.  98;  and  see  Cockell  v.  Pugh,  6 
Beav.  293.  From  the  words  "  in  the  name  of  whose  testator,"  it  was  ruled  that 
the  clause  did  not  apply  to  the  case  of  a  trustee  dying  intestate;  Re  Lunn's 
Charity,  15  Sim.  464. 


(356       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC 

be  out  of  the  jurisdiction  or  not  amenahle  to  the  process  of  the  court,{e) 
or  it  should  be  uncertain  tvhether  such  person  teas  living  or  dead,  or  if 
any  such  trustee  or  executor  or  other  person  should  neglect  or  refuse{f  ) 
to  transfer  such  stock,  or  receive  and  pay  over  the  dividends  thereof  to  the 
person  entitled  thereto  or  to  any  part  thereof  respectively,  for  the  space 
of  thirty-one  *days  after  request{g)in  writing  hy  the  person  en- 
[  ^^'^J  titled  as  aforsaid,{h)  the  court  might  appoint  a  person  to  transfer 
the  stock,  or  receive  and  pay  over  the  dividends,  such  transfer,  receipt, 
or  payment  to  be  as  cflFectual  as  if  made  by  such  trustee,  executor,  or 
other  person. 

The  eleventh  section  determined  the  mode  of  application,  by  declaring 
that  every  direction  or  order  to  be  made  under  the  act  should  be  signified 
either  by  an  order  made  in  any  cause  dejjending  in  the  court,(^i'j  or  upon 
petition  in  the  lunacy  or  matter  ;{k)  and  where  the  order  was  made  on 
petition,  declared  who,  according  to  the  circumstances  of  the  case,  should 
be  the  petitioner. 

The  fifteenth  section  provided  that  the  act  should  extend  to  trustees 
having  an  interest  or  having  a  duty  to  perform,  and  the  sixteenth  and 
seventeenth  made  special  provision  for  certain  cases  of  specific  perform- 
ance. 

The  eighteenth  section  extended  the  provisions  of  the  act  to  every  case 
of  a  constructive  trust  or  of  a  trust  arising  or  resulting  by  implication  of 
law,  but  where  the  alleged  trustee  had  or  claimed  a  beneficial  interest, 
no  order  was  to  be  made  until  after  it  had  been  declared  by  the  Court  of 
Chancery,  in  a  suit  regularly  instituted  in  such  court,  that  such  person 
was  a  trustee.(?)  And  cases  of  election  and  partition  were  expressly 
excepted. 

r*Qim      *%  ^^^  Trustee  Act,  1850,  (13  &  14  Vict.  c.  60,)  and  1  &  2 
L  ^^^J  Vict.  c.  69,  the  1  W.  4,  c.  60,  and  4  &  5  W.  4,  c.  23,  were  re- 

(«)  Where  a  trustee  (one  of  the  plaintiffs  in  a  suit)  commanded  a  mercliant 
vessel,  and  was  on  bis  voyage  to  India,  it  was  held  he  was  not  out  of  the  jurisdic- 
tion within  the  meaning  of  the  act;  Hutchinson  v.  Stephens,  5  Sim.  498  ;  and  see 
Ex  parte  Dover,  5  Sim.  500. 

(/)  Refusing  to  transfer  for  a  just  cause  was  of  course  no  ground  for  an  appli- 
cation to  the  court ;  Pepper  v.  Tuckey,  2  Jones  &  Lat.  95  ;  Re  Moloney,  ib.  391. 

(g)  An  order  of  the  court  could  not  be  construed  to  be  the  request  of  a  party ; 
Madge  v.  Riley,  3  Y.  &  C.  425. 

(A)  See  Re  Law,  4  Beav.  509  ;  Cockell  v.  Pugh,  6  Beav.  293  ;  and  note  (a),  p. 
837,  supra. 

(i)  Where  a  suit  was  depending,  the  order  might  have  been  made  on  the  decree 
without  a  petition;  Miller  v.  Knight,  1  Keen,  129;  Broom  v.  Broom,  3  M.  &  K. 
443;  Walton  v.  Merry,  6  Sim.  328;  overruling  Fellowes  v.  Till,  5  Sim.  319; 
Prytharch  v.  Havard,  6  Sim.  9.  The  order  was  also  sometimes  made  on  motion 
subsequently  to  the  decree  ;  Callaghan  v.  Egan,  1  Drury  &  Walsh,  187. 

{k)  The  order  could  not  have  been  made  upon  motion,  instead  of  petition,  where 
there  was  no  lis  pendens ;  Evelyn  v.  Forster,  8  Ves.  96  ;  Baynes  v.  Baynes,  9  Yes. 
462 ;  and  see  Anon.  1  Y.  &  C.  75. 

[l)  The  various  orders  to  convey,  &c.,  made  under  the  preceding  sections,  in 
cases  of  decrees  for  sale  in  suits  by  mortgagees  and  creditors,  must  be  viewed  as 
deriving  their  force  from  this  section  ;  see  Prendergast  v.  Eyre,  LI.  &  G.  t.  Sugd. 
11 ;  Warburton  v.  Vaughan,  2  Y.  &  C.  247  ;  King  v.  Leach,  2  Hare,  57  ;  Jackson 
V.  Milfield,  5  Hare,  538.  From  the  last  case,  and  Re  Milfield,  2  Phil.  254,  it 
appears  that  an  express  declaration  in  the  decree  of  the  fact  of  trusteeship  was 
not  necessary.  Of  course  if  a  sale  be  directed  by  the  court  without  jurisdiction 
the  act  cannot  apply;  Calvert  v.  Godfrey,  6  Beav.  97. 


PLEADING    AND    PRACTICE.  657 

pealed,  and  their  provisions  consolidated  and  extended.  The  chief 
feature  of  the  act,  in  connection  with  the  subject  of  this  chapter,  was  the 
authority  given  to  the  court  to  devest  the  legal  estate  out  of  the  person 
from  whom  a  conveyance  might  be  desired,  and  vest  it  in  the  proper 
person  or  persons  by  the  mere  order  of  the  court  itself,  now  familiarly 
known  as  a  vesting  order.  Additional  facilities  were  also  created  for 
dealing  with  shares  in  public  companies,  and  "  choses  in  action"  held 
upon  trust. 

The  provisions  of  this  act  having  been  found  defective  in  some  respects, 
they  were  again  extended  by  15  &  16  Vict.  c.  55. 

These  two  acts,  with  the  decisions  of  the  court  upon  the  construction 
of  the  different  clauses,  will  be  found  in  extenso  at  the  end  of  the  Trea- 
tise. 


*CHAPTER  XXIX.  [*841] 

PLEADING   AND   PRACTICE    IN   REFERENCE   TO   THE   LAW  OF   TRUSTS. 

Under  this  head  we  propose  considering,  First,  The  necessary  parties 
to  suits  relating  to  trusts ;  Secondly,  The  order  and  manner  in  which 
trustees  and  cestuis  que  trust  ought  to  sue  or  defend;  Thirdly,  Distringas; 
Fourthly,  Compulsory  payment  into  court;  Fifthly,  Eeceivership;  Sixthly, 
Costs  of  suit. 

SECTION  I. 

OF    NECESSARY   PARTIES. 

It  will  be  more  convenient,  first,  to  state  the  general  practice,  and  then 
to  mention  the  modifications  introduced  by  statutory  enactment  and  the 
orders  of  the  court. 

Suits  in  equity  affecting  trusts  are  either  between  strangers  on  the  one 
hand,  and  the  persons  interested  in  the  trust  on  the  other ;  or  between 
the  persons  interested  in  the  trust  inter  se. 

I.  In  suits  by  or  against  strangers  it  is  a  general  rule  (unless  some 
enactment  or  order  of  the  court  make  an  exception)  that  all  the  trustees 
and  cestuis  que  trust,  who  together  constitute  but  one  interest,  must  be 
made  parties. (a) 

Thus  where  a  mortgage  is  made  to  A.  in  trust  for  B.,  the  p^o  .9-1 
*latter  cannot  file  a  foreclosure  bill  without  making  A.  a  party,  L  "'J 
who  on  redemption  would  be  the  person  to  convey  the  legal  estate. (Z^) 
And,  in  the  case  of  a  contract  to  convey  to  A.  in  trust  for  B.,  the  latter 

{a)  Bifield  v.  Taylor,  1  Moll.  198,  per  Sir  A.  Hart;  Adams  v.  St.  Leger,  1_^B.  & 
B.  184,  per  Lord  Manners. 

(b)  Wood  V.  Williams,  4  Mad.  186  ;  Scott  v.  Nicoll,  3  Russ.  47G  ;  Hicheus  v. 
Kelly,  2  Sm.  &  Gif.  264. 


058       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

cannot  sue  for  specific  performance  without  A.,  to  whom  the  conveyance 
of  the  legal  estate,  if  at  all,  will  be  decreed.(c) 

So  one  of  several  cestuis  que  trust  cannot  file  a  bill  of  foreclosure((/) 
or  redemption{t')  without  bringing  before  the  court  the  other  cestuis  que 
trust  who  are  interested  in  the  mortgage  or  equity  of  redemption. 

So  a  morto-a^ee  could  not  foreclose  without  making  all  the  cestuis  que 
trust,  claiming'^under  the  mortgagor,  parties  ;(/)  and  a  mortgagor  could 
not  file  a  bill  to  redeem  without  bringing  before  the  court  all  the  cestuis 
que  trust  interested  in  the  mortgage.(5')  However,  it  was  observed  by 
Lord  Hardwicke  that  «  where  a  mortgagee,  who  had  a  plain  redeemable 
interest,  made  several  conveyances  upon  trust  in  order  to  entangle  the 
affairs,  and  render  it  difficult  for  the  mortgagor  or  his  representatives  to 
redeem,  there  it  was  not  necessary  that  the  plaintiff  should  trace  out  all 
the  persons  who  have  an  interest  in  such  trust  to  make  them  parties. "(A) 

If  A.  grant  an  annuity  to  B.,  and  vest  a  term  in  C.  to  secure  it,  A. 
cannot  file  a  bill  against  B.  to  set  aside  the  annuity  without  making  C.  a 
party,  for  A.  might  have  to  institute  another  suit  against  C.  to  get  the 
legal  estate,  and  then  B.  (who  would  again  be  a  necessary  party)  would 
be  doubly  vexed. (z) 

*It  was  laid  down  by  Lord  Redesdale,  that,  "  Trustees  of  real 
L  -J  estate  for  payments  of  debts  or  legacies  might  sustain  a  suit, 
either  as  plaintiffs  or  defendants  without  bringing  before  the  court  the 
creditors  or  legatees  for  whom  they  were  trustees,  which  in  many  cases 
would  be  almost  impossible,  and  the  rights  of  creditors  or  legatees  would 
be  bound  by  the  decision  of  the  court  against  the  trustees. "(A;)  But  in 
Harrison  v.  Stewardson,0  V.  C.  Wigram,  upon  this  passage  being  re- 
ferred to,  observed  "  that  it  was  impossible  to  say  the  practice  of  the 
court  was  in  conformity  with  the  passage  which  had  been  cited,"  and  he 
held,  in  the  case  before  him,  in  which  the  deed  was  for  the  benefit  of 
twenty-one  scheduled  creditors,  and  only  three  were  before  the  court, 
that  it  was  necessary  to  make  all  the  creditors  parties." 

Again,  it  was  also  said  by  Lord  Redesdale,  that  ''  persons  having  de- 
mands prior  to  the  creation  of  a  trust,  might  enforce  those  demands 
against  the   trustees  without   bringing  before   the    court   the   persons 

(c)  Cope  V.  Parry,  2  J.  &  W.  538;  Hobson  v.  Staneer,  9  Mod.  83. 

(d)  Palmer  v.  Lord  Carlisle,  1  S.  &  S.  423;  Lowe  v.  Morgan,  1  B.  C.  C.  368  ; 
Note,  The  decree  iu  Montgomerie  v.  Marquis  of  Bath,  3  Ves.  3G0,  was  made  with- 
out opposition,  though  it  is  not  expressed  (see  1  S.  &  S.  425,)  to  have  been  made 
by  consent. 

(e)  Palmer  v.  Lord  Carlisle,  1  S.  &  S.  425  ;  per  Sir  J.  Leach  ;  Henley  v.  Stone, 
3  Beav.  355. 

(/)  Calverley  v.  Phelp,  6  Mad.  229  ;  and  see  Wilton  v.  Jones,  2  Y.  &  C.  Ch.  Ca. 
244;  Thomas  v.  Dunning,  5  De  Gex.  &  Sm.  618 ;  Anderson  v.  Stather,  2  Coll.  209. 

{g)  Osborne  v.  Fallows,  1  R.  &  M.  741 ;  Whistler  v.  Webb,  Bunb.  53  ;  Yates  v. 
Hambly,  2  Atk.  237  ;  Drew  v.  Harman,  5  Price,  319;  Wetherill  v.  Collins,  3  Mad. 
255. 

(h)  Yates  v.  Hambly,  2  Atk.  237  ;  and  see  Osborne  v.  Fallows,  1  R.  &  M.  743. 

(i)  Bromley  v.  Holland,  7  Ves.  3,  p.  11,  12  ;  and  see  Butler  v.  Prendergast,  2  B. 
P.  C.  170. 

(k)  Mitf.  Eq.  PI.  174,  4  Ed. 

(/)  2  Hare,  530 ;  and  see  Holland  v.  Baker,  3  Hare,  68  ;  Thomas  v.  Dunning,  5 
De  G.  &  Sm.  618. 


PLEADING    AND    PRACTICE.  659 

interested  under  the  trust,  if  the  absolute  disposition  of  the  property  was 
vested  in  the  trustees ;  but  if  the  trustees  had  no  such  power  of  disposi- 
tion, as  in  the  case  of  trustees  to  convey  to  certain  uses,  the  persons 
claiming  the  benefit  of  the  trust  must  also  be  parties.  Persons  having 
specific  charges  on  the  trust  property  in  many  cases  were  also  necessary 
parties,  but  this  would  not  extend  to  a  general  trust  for  creditors  or  others 
whose  demands  were  not  distinctly  specified  in  the  creation  of  the  trust, 
as  their  number,  as  well  as  the  difficulty  of  ascertaining  who  might  answer 
a  general  description,  might  greatly  embarrass  a  prior  claim  against  a  trust 
property. (jw")  But  it  is  apprehended  that  an  absolute  power  of  disposition 
in  the  trustees  was  not  suificient  to  dispense  with  the  cestms  que  trust, 
and  that  in  all  cases  persons  having  specific  charges  must  have  been 
parties,  and  that  even  creditors  must  not  have  been  omitted  as  parties 
altogether,  but  must  have  been  represented  by  a  few.  Assignees  of 
bankrupts  and  insolvents,  however,  although  quasi  trustees,  were  com- 
*petent  to  sue  or  sustain  a  suit  without  the  presence  of  the  pg^^-i 
creditors. 

In  suits  for  the  specific  performance  of  a  contract,  or  to  have  it  can- 
celled, upon  any  ground,  the  general  rule  is  that  the  parties  to  the  con- 
tract are  the  only  parties  to  the  suit,  and  therefore  if  trustees  enter  into 
a  contract,  not  as  the  agents  of  their  cestms  que  trust  but  as  principals 
(though  the  property  of  the  cestuis  que  trust  is  in  fact  concerned,)  they 
may  sustain  a  suit  either  as  plaintifis  or  defendants  without  the  presence 
of  the  cestuis  que  trust.  And  not  only  is  it  unnecessary,  but  in  many 
cases  would  be  highly  improper,  to  make  the  cestuis  que  trust  parties. (?i) 
But  where  persons  sustaining  a  fiduciary  character  enter  into  a  contract 
not  as  priyicipals,  but  on  behalf  and  as  the  agents  of  other  parties,  those 
other  parties  as  the  principals  and  not  their  agents  are  the  proper  per- 
sons to  sue.(o) 

In  marriage  articles  the  husband  and  wife  and  their  issue  are  all 
purchasers  for  valuable  consideration,  and  parties  to  the  contract,  and 
therefore  if  any  agreement  had  been  made  in  articles  with  trustees,  they 
alone  could  not  have  filed  a  bill  for  specific  performance  without  bring- 
ing the  cestuis  que  trust  before  the  court,  for  the  latter  being  also  in 
fact  parties  to  the  contract,  if  the  bill  of  the  trustees  were  dismissed, 
might  afterwards  file  themselves  another  bill  against  the  defendant  for 
the  like  purpose. (p) 

Where  several  persons  have  united  in  constituting  another  their 
representative  in  a  iTiatter  for  all  purposes,  there  it  seems  such  representa- 
tive may  sue  or  be  sued  in  the  absence  of  the  cestui  que  trust.^q)  But 
the  intention  to  constitute  such  a  representative  must  clearly  appear. 
For  trustees  are  not  themselves  owners  of  the  property ;  they  are  in  a 

(»«)  Mitf.  Eq.  PI.  176,  4  Ed. 

(n)  Wood  V.  White,  4  M.  &  C.  460 ;  Keon  v.  Magawlj,  1  Dru.  &  War.  400 ; 
Tasker  v.  Small,  3  M.  &  C.  63  ;  Humphreys  v.  Hollis,  Jac.  73  ;  Wakeman  v. 
Duchess  of  Rutland,  3  Ves.  233,  504. 

(o)  Doughis  V.  Horsfall,  2  S.  &  S.  184:  Hook  v.  Kinnear,  3  Sw.  417,  note  ; 
Small  V.  Atwood,  Younge,  457.  '  (p)  Kirk  v.  Clark,  Pr.  Ch.  275. 

(g)  Vernon  V.  Blackerly,  2  Atk.  145  ;  Bifield  v.  Taylor,  1  Moll.  193  ;  S.  C.  Beat.  91. 


6G0  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

sense  agents  for  the  owners  in  executing  the  trusts,  but  they  are  not 
constituted  agents  for  the  purpose  of  defending  the  owners  against  the 
adverse  claims  of  third  parties. (r) 

*II.  Where  the  suit  is  between  the  parties  interested  in  the 
L  ^  "^J  trust  inter  se,  the  rule  (where  no  enactment  or  order  of  the  court 
dispenses  with  it)  equally  prevails  that  all  the  trustees  and  all  the  cestuis 
que  trust  must  be  before  the  court. 

1.  As  to  trustees.  In  suits  by  cestuis  que  trust,  praying  relief  against 
their  trustees,  it  is  necessary  as  a  general  rule  to  make  all  the  co-trustees 
parties,(s)  on  the  ground  that  as  eacJi  co-trustee  was  liable  to  the  cestuis 
que  trust,  a  multiplicity  of  suits  for  the  same  matter  might  be  avoided, 
and  that  the  accounts  might  not  be  taken  twice  over;  and  also  that  the 
court  may,  if  possible,  do  justice  to  one  defendant  by  a  decree  over  against 
a  co-defendant,(/)  and  it  is  the  plaintiff's  duty  so  to  frame  his  suit  that 
complete  justice  may  be  done  without  throwing  it  on  the  defendant  to 
file  a  cross  bill.(M)  But  it  is  to  be  remembered  that  a  decree  between 
co-defendants  must  always  be  founded  on  the  proofs  in  the  cause,  upon 
the  issue  between  the  plaintiif  and  the  co-defendants,  for  though  one 
defendant  may  read  against  a  co-defendant  the  proofs  by  the  plaintiff  as 
having  been  examined  against  all  the  defendants,  he  cannot  read  the 
answer  of  a  co-defendant.(v) 

It  commonly  happens  that,  in  a  suit  by  a  cestui  que  trust  for  relief 
against  the  trustees  for  a  breach  of  trust,  the  merits  of  the  case  as  between 
the  co-defendants  are  not  suflBciently  elicited  to  authorize  the  court  to 
adjust  the  equities  between  them,  but  they  are  left  to  institute  a  future 
suit  inter  se  for  the  purpose  of  obtaining  a  contribution,  or  otherwise 
working  out  the  relief  to  which  they  are  entitled.  They  must  neverthe- 
less have  been  all  made  parties  to  the  original  suit,  for  although  the  court 
r*Sin  ^^"^'^  make  no  decree  between  them,  it  would  proceed  as  far  *as 
L  -i  it  could  by  declaring  the  joint  liability,  and  settling  the  amount 
of  it  by  accounts  taken  in  the  presence  of  all ;  and  then  in  a  future  suit 
instituted  for  contribution  or  other  relief,  the  court  might  make  its  decree 
upon  the  basis  of  the  amount  so  ascertained. (it?) 

If  co-trustees  commit  a  breach  of  trust  and  a  third  party  reaps  the 
benefit,  he  must  also,  as  a  quasi-trustee,  be  made  a  defendant,  since  he 
is  liable  to  be  sued  by  the  cestui  que  trust,  and  the  equities  between  him- 
self and  the  co-trustees  ought  to  be  settled  so  far  as  is  practicable. (a;) 

{r)  Holland  v.  Baker,  3  Hare,  72. 

(s)  Munch  V.  Cockerell,  8  Sim.  219;  Perry  v.  Knott,  4  Beav.  1Y9 ;  and  see  In 
Re  Chertsey  Market,  6  Price,  278  ;  Attorney-General  v.  Newbury  Corporation,  C. 
P.  Cooper's  Rep.  1837-38,  77  ;  Wilson  v.  Broughton,  cited  ib.  78  ;  but  see  Walker 
V.  Symonds,  3  Sw.  75;  Tarleton  y.  Hornbv,  1  Y.  &  C.  336;  Humberstone  v. 
Chace,  2  Y.  &  C.  213  ;  Attorney-General  v.  Wilson,  Cr.  &  Ph.  28. 

(t)  See  Jones  v.  Jones,  3  Atk.  112  ;  Walker  v.  Preswick,  2  Yes.  622  ;  Latouche 
V.  Dunsany,  1  Sch.  &  Lef.  137,  2  Sch.  &  Lef.  600  ;  Farquharson  v.  Seton,  5  Russ. 
45;  Conry  v.  Caulfield,  2  B.  &  B.  255. 

(m)  See  Jones  v.  Jones,  3  Atk.  112  ;  Shipton  v.  Rawlins,  4  Hare,  623,  624. 

[v)  Eccleston  v.  Skelmersdale,  1  Beav.  396 ;  and  see  Cottingham  v.  Shrews- 
bury, 3  Hare,  627  ;  Lennard  v.  Curzon,  1  De  Gex  &  Sm.  350. 

(^o)  See  Perry  v.  Knott,  4  Beav.  180. 

{x)  Burt  V.  Dennet,  2  B.  C.  C.  225  ;  Perry  v.  Knott,  4  Beav.  179 ;  5  Beav.  297  ; 
Consett  V.  Bell,  1  Y.  &  C.  Ch.  Ca.  569. 


I 


PLEADING    AND    PRACTICE.  661 

If  a  trustee  transfer  a  fund  improperly  to  a  stranger  without  considera- 
tion and  without  notice,  and  the  stranger  transfer  it  over  either  for  no 
consideration  or  for  a  valuable  consideration  not  paid  to  himself,  the 
intermediate  assignee  need  not  be  made  a  defendant,  for  not  having  had 
any  notice  of  the  trust  he  cannot  be  sued  personally  on  the  ground  of 
liability,  and  not  having  derived  any  benefit  from  it  there  is  no  property 
in  his  hands  to  be  specially  attachedly) 

Of  course,  wherever  the  trust  estate  passes  to  ?i  purchaser  for  valuahle 
consideration  ivitliout  notice,  it  is  unnecessary  to  make  such  purchaser  a 
party. 

If  a  person  invested  with  a  fiduciary  character  be  guilty,  not  of  a  mere 
breach  of  trust  or  non-performance  of  a  civil  obligation,  but  of  a  tort  or 
delictum, (2;)  that  is,  a  fraudulent(a)  or  wrongful(6)  act,  the  remedy  might 
always  have  been  pursued  against  that  person  only,  without  making  those 
who  confederated  with  him  also  parties. (c)  "In  cases  of  this  kind," 
observed  Lord  Cottenham,"  where  the  liability  arises  from  the  wrongful 
act  of  the  parties,  each  is  liable  for  all  the  ^consequences,  and  r^oi'j-^ 
there  is  no  contribution  between  them,  and  each  case  is  distinct,  L  J 
depending  upon  the  evidence  against  each  party.  It  is  therefore  not 
necessary  to  make  all  parties,  who  may  more  or  less  have  joined  in  the 
act  complained  of,  nor  would  any  one  derive  any  advantage  from  their 
being  all  made  defendants,  because  as  the  decree  would  be  general  against 
all  found  to  be  guilty  of  the  charge,  it  might  be  executed  against  any  of 
them. "((A  The  casesto  which  this  doctrine  has  been  applied,  have  been 
where  corporators  deserting  their  duty  have  made  a  fraudulent  alienation 
of  the  corporate  property,  or  certain  members  of  a  company  have  been 
the  means  of  inveigling  strangers  by  fraudulent  misrepresentations. 

It  is  not  necessary  to  bring  before  the  court  the  representatives  of  a 
trustee  who,  as  the  bill  is  fi-amed,  had  no  concern  with  the  matters  in 
question  in  the  suit.fe)  In  some  cases  the  plaintiff  has  been  allowed  to 
proceed  in  the  absence  of  the  representative  of  a  co-trustee,  by  waiving 
all  relief  which  could  not  be  granted  in  the  absence  of  such  representa- 
tive.(/) 

A  person  need  not  be  made  a  party  who  has  merely  been  named  a 
trustee  but  has  disclaimed. (^) 

And  the  suit  may  proceed  so  far  as  it  can  in  the  absence  of  a  trustee 
who  is  out  of  the  jurisdiction, ^/i)  or  cannot  be  compelled  by  the  utmost 

{y)  Harrison  v.  Prjse,  Barn.  324;  Knye  v.  Moore,  1  S.  &.  S.  61. 

[z)  See  Lingard  v.  Bromley,  1  V.  &  B.  117. 

(a)  See  Seddon  v.  Connell,  10  Sim.  86. 

{h)  See  Attorney-General  v.  Wilson,  1  Cr.  &  Ph.  28. 

(c)  Attorney-General  v.  Wilson,  1  Cr.  &  Ph.  1 ;  Seddon  v.  Connell,  10  Sim.  58, 
see  p.  86;  Waldburn  v.  Ingilby,  1  M.  &  K.  77  ;  and  see  Charity  Corporation  v. 
Sutton,  2  Atk.  406  ;  Attorney-General  v.  Brown,  1  Sw.  265. 

{d)  Attorney-General  v.  Wilson,  1  Cr.  &  Ph.  28. 

(e)  Glass  v.  Oxenham,  2  Atk.  121  ;  Routh  v.  Kinder,  3  Sw.  144,  note;  Slater  v. 
Wheeler,  9  Sim.  156  ;  Beattie  v.  Johnstone,  8  Hare,  169. 

{/)  Selyard  v.  Harris,  1  Eq.  Ca.  Ata.  74 ;  Moon  v.  Blake,  1  Moll.  284. 

(g)  W^ilkinson  v.  Parry,  4  Russ.  274;  Richardson  v.  Hulbert,  1  Anst.  65  ;  Creed 
T.  Creed,  2  Hog.  215. 

(/«)  See  Morrill  v.  Lawson,  2  Eq.  Ca.  Ab.  167 ;  AValley  v.  Whalley,  1  Vern.  487. 
Cowstad  V.  Cely,  Pr.  Ch.  83. 


062  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

process  against  him  to  appear  to  the  bill  ;{i)  or  if  it  be  proved  to  the 
court  that  diligent  search  and  inquiry  has  been  made  after  him  to  serve 
him  with  process,  and  that  he  cannot  be  found. (^) 

Where  a  trustee  has  died  insolvent,  it  is  not  necessary  in  a  suit  that 
under  other  circumstances  would  cast  a  liability  upon  the  estate  of  the 
^  trustee,  as  for  having  joined  in  a  breach  of  *trust,  to  bring  his  per- 

[*848]  g^^^j  representative  before  the  court.(?)  But  a  trustee,  if  other- 
wise a  necessary  party,  cannot  be  dispensed  with  as  a  party  during  his 
lifetime,  on  the  ground  that  he  is  in  insolvent  circumstances,  for  the 
embarrassment  may  be  only  temporary,  and  he  may  eventually  be  able 
to  discharge  the  debt.(m) 

In  suits  between  parties  for  the  adjudication  of  their  rights  to  an  estate, 
it  is  not  necessary  to  have  the  presence  of  a  mere  trustee  of  an  outstand- 
ing term.(??) 

An  intermediate  trustee  of  a  mere  equity  need  not,  except  under 
special  circumstances,(o)  be  made  a  party.  Thus  A.,  the  cestuique  trust 
of  a  fund  of  which  the  legal  estate  is  in  B.,  assigns  his  interest  to  C.  in 
trust  simply  for  D. ;  here  D.  may  sue  B.  for  the  fund  without  making  C. 
a  party. (p) 

A  trustee  who  has  assigned  his  interest  over  to  a  new  trustee^  need 
not  be  a  party.  Thus  where  A.  was  trustee  for  B.  for  securing  an  an- 
nuity, and  B.  assigned  the  annuity  to  C,  and  A.  assigned  the  term  to 
D.,  it  was  of  course  not  necesssary  in  a  suit  to  set  aside  the  annuity,  to 
make  A.  a  party. (5-) 

Where  a  person  mortgaged  his  reversionary  interest  in  stock,  and  then 
assigned  it  to  trustees  by  a  voluntary  instrument  upon  trust  for  payment 
of  his  debts,  it  was  held  the  trustees  were  not  necessary  parties  to  a  fore- 
closure suit,  the  deed  being  defeasible  at  any  moment,  and  the  trustees 
the  mere  agents  of  the  mortgagor. (r) 

It  has  been  said  that  sometimes  bills  have  been  brought  by  a  cestui 
que  trust  without  making  the  trustee  a  party,  upon  the  principle  of  the 
cestui  que  trust  undertaking  for  the  trustee,  who  has  no  personal  interest, 
that  he  should  conform  to  what  decree  should  be  raade.(s)  But  this 
must  be  regarded  as  an  anomaly. 

r*8iQn  '^^^  ^  ^^^^  ^^  ^^^^  against  several  trustees  but  does  not  seek  to 
L  J  charge  them  personally,  on  the  death  of  one,  the  trusteeship  sur- 
vives, and  the  representatives  of  the  deceased  trustee  need  not  be  brought 

(?)  Butler  V.  Prendergast,  2  B.  P.  C.  170. 

(k)  See  s.  49  of  the  trusteee  act,  1840,  re-enacting  s.  24  of  11  G.  4,  and  1  W.  4,  c. 
60,  s.  24;  and  see  Moore  v.  Vinten,  12  Sim.  161  ;  Heath  v.  Percival,  2  Eq.  Ca.  Ab. 
167 ;  S.  C.  1  P.  W.  683 ;  Waller  v.  Wlialley,  1  Vern.  487. 

(I)  Seddon  v.  Connell,  10  Sim.  85  ;  Madox  v.  Jackson,  3  Atk.  406;  but  see 
Haywood  v.  Ovey,  6  Mad.  113. 

(m)  See  Thorpe  v.  Jackson,  2  Y.  &  C.  560,  563  ;  Haywood  v.  Ovey,  6  Mad.  113. 

(«)  Brookes  v.  Burt,  1  Beav.  106.  (0)  Scully  v.  Scully,  3  Ir.'Eq.  Rep.  494. 

Ip)  Head  v.  Teynham,  1  Cox,  57;  Munch  v.  Cockerell,  8  Sim.  219  ;  and  see 
Malone  v.  Geraghty,  2  Conn.  &  Laws.  249  ;  Whittle  v.  Halliday,  2  Conn.  &  Laws. 
430  ;  Horrocks  v.  Ledsam,  2  Coll.  208. 

(q)  Bromley  v.  Holland,  7  Ves.  11  :  and  see  Knye  v.  Moore,  1  S.  &  S.  65  ;  Reed 
V.  O'Brien,  7  Beav.  32. 

(r)  Slade  V.  Rigg,  3  Hare.  35.  (s)  Kirk  v.  Clark,  Pr.  Ch.  275. 


PLEADING    AND    PRACTICE.  663 

before  the  court ;(/)  and  the  representative  of  a  deceased  trustee  who  was 
not  a  party  to  the  breach  of  trust  complained  of,  and  on  whose  death  the 
trust  fund  devolved  on  the  surviving  trustee,  need  not  be  made  a  defend- 
ant to  a  suit  for  recovering  amends  for  the  breach  of  trust  against  the 
surviving  trustee. (m) 

If  a  person  entitled  to  a  share  of  a  fund  standing  in  the  names  of 
trustees  make  a  new  settlement  and  appoint  new  trustees,  who  commit  a 
breach  of  trust  in  which  the  old  trustees  are  also  implicated,  the  cestuis 
que  trust  under  the  last  settlement  may  have  relief,  in  respect  of  the 
breach  of  trust,  against  the  new  trustees  without  making  the  old  trustees 
parties,  (y) 

2.  It  was  necessary  until  recently  to  have  all  the  cestuis  que  trust 
before  the  court,  in  order  that  the  rights  of  all  parties  interested  might 
be  ascertained,  so  that  future  litigation  might  be  excluded,  and  that  the 
trustee  might  not  be  afterwards  harassed  for  having  obeyed  the  order  of 
the  court.(?c)  But  the  general  rule  was  and  is  subject  to  numerous 
exceptions. 

If  a  cestui  que  trust  was  abroad,  the  court  might  proceed  without  him 
if  he  was  merely  a  passive  party,  and  the  disposition  of  the  property  was 
in  the  power  of  those  before  the  eourt.(a-)  But  if  the  primary  object  of 
the  suit  be  to  affect  the  right  of  the  absent  cestui  que  trust,  as  in  a  bill 
for  equitable  execution  against  his  estate,  the  court  will  not  make  a 
decree  behind  his  back,  even  though  the  legal  interest  may  be  vested  in 
some  of  the  defendants. (^)  In  one  case  liberty  was  reserved  to  make 
alterations  in  the  decree  apparently  that  the  absent  "^cestui  que  |-:i:Q-n-i 
trust  might,  if  so  advised,  apply  by  petition  to  have  the  decree  L  -» 
amended. fz)  In  another  case  where  one  of  the  cestuis  que  trust  was 
abroad  and  could  not  be  found,  the  court,  though  the  right  of  that  cestui 
que  trust  was  involved,  directed  a  conveyance  of  the  estate,  but  without 
prejudice  to  any  right  or  interest  which  might  be  claimed  by  that  cestui 
que  trust. (^a\ 

A  suit  might  proceed  in  the  absence  of  a  cestui  que  trust  if  process  was 
made  against  him  to  a  sequestration,  and  he  could  not  be  compelled  to 
appear,  (i) 

If  a  cestui  que  trust  assign  his  interest  over,  the  original  cestui  que 
trust  need  not  be  a  party  to  a  suit  instituted  by  the  assignee. (c) 

A  cestui  que  tr^isf,  entitled  to  a  distinct  aliquot  share  of  an  ascertained 
fund,  might  file  a  bill  against  the  trustee  of  the  fund  for  the  transfer  of 

(t)  London  Gas  Light  Company  v.  Spottiswoode,  14  Beav.  271. 

(it)  Simes  v.  Eyre,  6  Hare,  137.  (c)  M'Gachen  v.  Dew,  15  Beav.  84. 

(id)  Pyncent  v."Pyncent,  3  Atk.  571 ;  Adams  v.  St.  Leger,  1  B.  &  B.  181  ;  Court 
V.  Jeffry,  1  S.  &  S.  105;  Manning  v.  Thesiger,  ib.  107;  Josling  v.  Karr,  3  Beav. 
495;  Morril  v.  Lawson,  2  Eq.  Ca.  Ab.  1G7;  Pliillipson  v.  Gatty,  6  Hare,  26; 
Hanne  v.  Stevens,  1  Vern.  110. 

(x)  Rogers  v.  Linton,  Bunb.  200  ;  and  see  Willats  v.  Busby,  5  Beav.  193. 

(y)  Browne  v.  Blount,  2  R.  &  M.  83  ;  see  Holmes  v.  Bell,  2  Beav.  298 ;  Fell  v. 
Brown,  2  B.  C.  C.  276 ;  Willats  v.  Busby,  5  Beav.  193. 

(2)  Attorney-General  v.  Balliol  College,  9  Mod.  407  ;  see  409. 

(a)  Willats  v.  Busby,  5  Beav.  193. 

(b)  Downs  V.  Thomas,  7  Ves.  206  ;  Phillips  v.  Duke  of  Buckingham,  1  Vern.  228. 

(c)  Goodson  v.  Ellisson,  3  Russ.  583. 


604       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

that  share  without  making  the  cestuis  que  trust  of  the  residue  of  the  fund 
parties. ((f)  But  where  a  plaintiff  was  entitled  to  an  aliquot  share  not  in 
an  ascertained  and  existing  fund,  but  in  one  for  which  the  defendant  was 
liable  to  account,  he  must  have  made  the  persons  entitled  to  the  other 
aliquot  shares  parties. (e)  And  it  has  been  observed  that  suits  for  aliquot 
shares,  without  making  the  other  persons  interested  parties,  are  not  to  be 
encouraged  as  being  inconvenient.(/) 

III.  Certain  exceptional  cases  depending  upon  considerations  equally 
applicable  to  suits  between  the  trust  estate  on  the  one  hand,  and  strangers 
on  the  other,  and  to  suits  between  the  trustees  and  cestuis  que  trust,  inter 
se,  remain  to  be  considered. 

Where  a  breach  of  trust  has  been  committed,  it  is  competent  to  one  or 
more  of  the  trustees  at  any  time  to  institute  a  suit  against  the  person 
liable  to  make  good  the  fund  without  making  *the  cestuis  que 
L  J  trust  parties.  It  may  be  objected,  that,  as  a  suit  by  the  cestuis 
que  trust  would  also  clearly  lie  in  such  a  case,  the  defendant  would  thus 
be  liable  to  be  twice  vexed  for  the  same  matter.  However,  the  rule  from 
its  great  convenience  has  been  repeatedly  recognised,  and  may  be  con- 
sidered established.  ((/) 

Where  the  cestuis  que  trust  are  so  numerous  a  body  that  the  suit  could 
not  possibly,  or  at  all  events  conveniently,  proceed,  if  all  were  required 
to  be  parties,  the  court  will,  in  accordance  with  its  ordinary  practice 
where  numerous  parties  have  a  common  interest,  permit  some  of  the 
cestuis  que  trust  to  sue  on  behalf  of  the  rest  and  as  their  representa- 
tives.(A) 

So  where  cestuis  que  trust  are  exceedingly  numerous,  a  small  number 
may  be  made  defendants  as  representatives  of  the  rest  for  the  purpose  of 
binding  their  rights. (?')  But  in  such  cases  if  all  the  cestuis  que  trust  be 
not  parties,  the  trustees  must  be  so.(Z:)  In  many  cases  the  plaintiff  can- 
not have  complete  relief  in  the  absence  of  the  general  body,  as  where 
they  ought  all  to  join  in  a  conveyance ;  but  even  here  if  the  plaintiff  pro- 
ceed against  a  few  as  defendants,  the  court  will  go  as  far  as  it  can  by 
binding  the  rights  of  all  in  equity.^/') 

(d)  Smith  V.  Snow,  3  Mad.  10;  Hutchinson  T.  Townsend,  2  Keen.  675  ;  Hugh^ 
son  V.  Cookson,  3  Y.  &  C.  578;  Perry  v.  Knott,  5  Beav.  293. 

(e)  Lenaghan  v.  Smith,  2  Phil.  301 ;  Alexander  v.  Mullins,  2  R.  &  M.  568. 
(/)  Hutchinson  v.  Townsend,  2  Keen,  678,  per  Lord  Langdale. 

iff)  Franco  v.  Franco,  3  Ves.  75  ;  May  v.  Selby,  1  Y.  &  C.  Ch.  Ca.  235 ;  Bridget 
V.  Hames,  1  Coll.  72  ;  Noble  v.  Meymott,  14  Beav.  471  ;  Peake  v.  Ledger,  4  De 
Gex  &  Sm.  137  ;  Groom  v.  Booth,  1  Drewry,  567  ;  Horsley  v.  Fawcett,  11  Beav. 
565  ;  Chancellor  v.  Morecraft,  ib.  262  ;  Hughes  v.  Key,  20  Beav.  395  ;  Baynard  v. 
Woolley,  ib.  583. 

(h)  Chancey  v.  May,  Pr.  Ch.  592  ;  Manning  v.  Thesiger,  1  S.  &  S.  106  ;  Weld 
V.  Bonham,  2  S.  &  S.'oi ;  Harvey  v.  Harvey,  4  Beav.  215  ;  and  see  Lloyd  v.  Loar- 
iiig,  6  Ves.  773  ;  Cockburn  v.  Thompson,  16  Yes.  321  ;  Hichens  v.  Congreve,  4 
Russ.  562  ;  Preston  v.  Grand  Collier  Dock  Company,  11  Sim.  327;  Bromley  v. 
Smith,  1  Sim.  8  ;  Walworth  v.  Holt,  4  M.  &  C.  619  ;  Attorney-General  v.  Heelis,  2 
S.  &  S.  67  ;  Taylor  v.  Salmon,  4  M.  &  C.  134;  Williams  v.  Salmond,  2  K.  &  J.  463. 

{()  Adair  v.  New  River  Company,  11  Ves.  429,  see  pp.  443,  444,  445  ;  City  of 
London  v.  Richmond,  2  Vern.  421  ;  Meuxv.  Maltby,  2  Sw.  277  ;  Bunnett  v.  Foster, 
7  Beav.  540 ;  Harvey  v.  Harvey,  4  Beav.  215  ;  5  Beav.  134  ;  Milbank  v.  Collier,  1 
Coll.  237.  (k)  Holland  v.  Baker,  3  Hare,  68. 

(1)  Meux  V.  Maltby,  2  Sw.  285 ;  and  see  Powell  v.  Wright,  7  Beav.  449,  450. 


PLEADING    AND    PRACTICE.  665 

In  order  to  enable  some  to  sue  on  behalf  of  themselves  and  others,  it 
must  appear  that  the  relief  sought  is  in  its  nature  beneficial  to  all  those 
whom  the  plaintiff  undertakes  to  *re])rcsent.(m)  And  the  frame  r:}:(i.f^,r>-] 
of  the  suit  must  not  involve  any  matter  of  contest  between  the  L  J 
plaintiff  and  the  parties  represented  by  him  inter  se.(^n^ 

What  number  was  large  enough  to  induce  the  court  to  dispense  with 
the  rule  requiring  all  to  be  made  parties  has  never  been  exactly  defined. 
It  was  held  in  one  case  that  where  the  cesfuis  que  trust  were  twenty,  they 
ought  all  to  be  brought  before  the  court. (oj  But  in  two  other  cases 
where  the  original  cestuis  que  trust  were  twenty-seven  and  twenty-six  in 
number  respectively,  and  bills  were  filed  20  and  17  years  respectively  after 
the  dates  of  the  respective  deeds  of  trust  praying  performance  of  the  trusts, 
it  was  held  that  some  of  the  cestuis  que  trust  could  maintain  the  suits 
on  behalf  of  themselves  and  all  others. (p) 

IV.  The  practice  of  the  court  has  now  been  considerably  varied  by 
certain  special  enactments,  and  by  the  general  orders  of  the  court  which 
we  proceed  to  consider. 

By  the  80th  order  of  26th  August,  1841,  it  was  provided  that  in  all 
suits  concerning  real  estate,  which  is  vested  in  trustees  by  devise  who 
were  competent  to  sell  and  give  discharges,  such  trustees  should  repre- 
sent the  persons  beneficially  interested  in  the  real  estate,  in  the  same 
manner  as  executors  and  administrators  represent  the  persons  beneficially 
interested  in  the  personal  estate. 

Upon  the  construction  of  this  clause  it  was  held  that  devisees  in  trust 
for  sale,  subject  to  a  charge  of  debts,  being  also  executors,  though  with- 
out an  express  power  of  signing  receipts,  were  within  the  meaning  of 
the  order.(5)  But  that  it  '''did  not  apply  where  the  trustees  had  r*ucQ-i 
not  an  absolute  power  of  sale  but  only  with  the  consent  of  another  L  '  -I 
person, (?•)  or  where  the  trust  for  sale  was  not  immediate,  but  to  be  exer- 
cised on  the  death  of  a  tenant  for  life,(s)  or  where  the  equitable  estate 
only,  and  not  the  legal  estate,  was  vested  in  the  trustees  by  the  will.(^) 
Where  the  trustees  took  the  estate  in  the  manner  required  by  the  order, 
they  sufficiently  represented  the  interests  of  the  cestuis  que  trust  in 
adverse  suits  between  strangers  on  the  one  hand,  and  the  privies  to  the 
trust  on  the  other.(?/)  But  where  the  suit  was  one  for  the  adjustment 
of  the  rights  of  the  cestuis  que  trust,  inter  se,  as  a  suit  for  the  general 
administration  of  a  testator's  estate,  the  order  did  not  apply  j(r)  though 

(m)  Jones  v.  Del  Rio,  cited  Attorney-General  v.  Heelis,  2  S.  &.  S.  16 ;  S.  C.  T. 
&  R.  297  ;  Gray  v.  Chaplin,  2  S.  &  S.  26T  ;  see  272  ;  Bainbrigge  v.  Burton,  2  Beav. 
539  ;  Long  v.  Yonge,  2  Sim.  385  ;  Richardson  v.  Larpent,  2  Y.  &  C.  Ch.  Ca.  507. 

(m)  Evans  v.  Stokes.  1  Keen,  24  ;  Bainbrigge  v.  Burton,  2  Beav.  539  ;  Richard- 
son v.  Larpent,  2  Y.  &  C.  Ch.  Ca.  507  ;  Newton  v.  Earl  of  Egmont,  4  Sim.  574  ;  5 
Sim.  130;  see  137. 

(o)  Harrison  v.  Stewardson,  2  Hare,  533.  The  bill  in  this  ease  was  by  a  judg- 
ment creditor  claiming  priority  over  the  cestuis  que  trust  and  praying  a  sale. 

(p)  Smart  v.  Bradstoclv,  7  Beav.  500  ;  Bateman  v.  Margerison,  6  Hare,  496. 

{q)  Savory  v.  Barber,  4  Hare,  125 ;  Ogden  v.  Lowry,  25  L.  J.  N.  S.  (Ch.)  198. 

(r)  Lloyd  v.  Smith,  13  Sim.  457.  (s)  Cox  v.  Barnard,  5  Hare,  25:!. 

(<)  Turner  v.  Hind,  12  Sim.  414. 

(m)  Osborne  v.  Foreman,  2  Hare,  G59  ;  Ward  v.  Bassett,  5  Hare,  179  ;  and  see 
Miller  v.  Huddlestone,  13  Sim.  468  ;  Wilton  v.  Jones,  2  Y.  &  C.  Ch.  Ca.  244. 

{v)  Jones  V.  How,  7  Hare,  270  ;  Miller  v.  Huddlestone,  13  Sim.  467. 

April,  1858.— 43 


QQQ  LEW  IN    ON    THE    LAW    OF    TRUSTS,    ETC. 

legatees  whose  legacies  were  charged  merely  on  real  estate  devised  so  as 
tofall  within  the  order  were  not  necessary  parties.(?f) 

The  32nd  order  of  26th  August,  1841,  declares  that  a  plaintiff  having 
a  joint  and  several  demand  against  several  persons,  either  as  principals 
or  sureties,  may  sue  without  bringing  before  the  court  all  the  persons 
liable,  but  may  proceed  against  one  or  more  of  the  persons  severally 
liable. 

This  order  has  been  construed  to  embrace  within  it,  and  indeed  was 
introduced  expressly  to  meet  the  case  of  co-trustees  concurring  in  a  breach 
of  trust,(:c)and  it  applies  to  individual  members  of  a  public  body  of  trus- 
tees as  well  as  to  private  trustees. (y)  But  although  it  may  not  be  neces- 
sary to  have  before  the  court  all  the  co-trustees  who  joined  in  the  breach 
of  trust,  the  order  does  not  dispense  with  the  necessity  of  making  the 
representatives  of  a  person  who  was  the  principal  in  the  breach  of  trust, 
^  and  reaped  the  benefit  of  it,  parties  to  *the  suit.(2)     And  a  cestui 

L  -I  que  trust  under  a  will  cannot  file  a  bill  against  a  surviving  execu- 
tor for  a  general  administration  of  the  estate,  including  relief  in  respect 
of  a  breach  of  trust  committed  by  the  defendant  and  a  deceased  execu- 
tor, without  making  the  personal  representative  of  the  deceased  co- 
executor  a  party. (a)  And  where  a  bill  is  originally  filed  on  the  basis  of 
making  all  the  co-trustees  liable,  the  plaintiff  cannot  afterwards,  upon 
one  of  the  trustees  dying,(&)  or  becoming  bankrupt,  (c)  waive  relief  against 
the  estate  of  that  trustee,  and  go  on  against  the  other  trustees  only. 
And  in  one  case  where  the  bill  sought  to  make  several  trustees  liable, 
and  the  plaintiff  by  examining  some  of  them  as  witnessses,  had  precluded 
himself  from  obtaining  a  decree  against  those  so  examined,  the  court 
would  not  under  the  order  make  a  decree  against  the  rest. ((A 

By  15  &  16  Vict.  c.  86,  s.  42,  rule  1,  any  residuary  legatee,  or  next 
of  kin,  may  have  a  decree  for  the  administration  of  the  personal  estate, 
without  making  the  other  residuary  legatees  or  next  of  kin  parties.  By 
rule  2,  any  person  interested  in  a  legacy  charged  upon  or  to  be  paid  out 
of  the  proceeds  of  real  estate,  may  have  a  decree  for  administration  of 
the  estate  without  serving  the  other  persons  interested.  By  rule  3,  any 
residuary  devisee  or  heir  may  have  the  like  decree  without  serving  any 
co-residuary  devisee  or  co-heir.  By  rule  4,  any  one  cestui  que  trust  may 
have  a  decree  for  administration  of  the  trust  without  serving  the  other 
cestuis  que  trust.{e)  By  rule  5,  in  suits  for  protection  of  property  pend- 
ing litigation,  and  in  matters  of  waste,  one  person  may  sue  on  behalf 
of  all  others  having  the  same  interest.     By  rule  6,  any  executor,  adminis- 

((<;)  Osborne  v.  Foreman,  2  Hare,  656  ;  Ward  v.  Bassett,  5  Hare,  179. 

(x)  See  Kellaway  v.  Johnson,  5  Beav.  319  ;  Attorney-General  v.  Corporation  of 
Leicester,  7  Beav.  176  ;  Strong  v.  Strong,  18  Beav.  408  ;  Norris  v.  Wright,  14 
Beav.  310  ;  Perry  v.  Knott,  4  Beav.  179  ;  5  Beav.  293. 

{y)  Attorney-General  v.  Pearson,  2  Coll.  581. 

(2)  Perry  v.  Knott,  4  Beav.  179  ;  5  Beav.  297  ;  Shipton  v.  Rawlins,  4  Hare,  619  ; 
Jesse  V.  Bennett,  2  Jur.  N.  S.  964,  6  De  Gex,  Mac.  &  Gor.  609. 

(a)  Biggs  v.  Penn,  4  Hare,  469  ;  Hall  v.  Austin,  2  Coll.  571. 

{h)  London  Gas  Light  Company  v.  Spottiswoode,  14  Beav.  264. 

(c)  Fussell  V.  Elwin,  7  Hare,  29". 

[d)  Attorney-General  v.  Dew,  3  De  Gex  &  Sm.  488. 
(«)  Jones  V.  James.  9  Hare,  Append.  Ixxx. 


PLEADING    AND    PRACTICE.  667 

trator,  or  trustee  may  obtain  a  decree  for  administration  against  any  one 
legatee,  next  of  kin,  or  cestui  que  trust.  But  by  rule  7,  the  court  in  the 
above  cases  may  require  any  other  persons  *to  be  made  parties.  r*gr g-, 
xind  by  rule  8,  in  all  the  foregoing  cases,  the  decree  when  made  L  J 
must  be  served  on  all  the  persons  who,  according  to  the  practice  of  the  court 
at  that  time,  and  independently  of  the  act,  would  be  necessary  parties. 

By  rule  9,  in  all  suits  concerning  real  or  personal  estate  vested  in 
trustees  under  a  will,  settlement,  or  otherwise,  such  trustees  shall  repre- 
sent their  cestuis  que  trust  in  the  same  manner  as  executors  or  adminis- 
trators represent  the  persons  beneficially  interested  in  the  personal 
estate.  But  the  court  may  direct  the  cestuis  que  trust  to  be  made  par- 
ties. 

It  is  to  be  observed  upon  these  rules,  that  although  in  a  large  propor- 
tion of  cases  the  old  difficulties  as  to  parties  are  removed  down  to  the 
hearing,  yet  rule  8  still  renders  a  reference  to  the  old  practice  necessary, 
though  at  a  difierent  stage  of  the  cause. 

Rule  9  is  much  more  comprehensive  than  the  30th  order  of  26th 
August,  1841,  as  it  comprises  trustees  appointed  not  only  by  a  will  but 
by  any  instrument,  and  is  not  confined  to  trustees  for  sale  merely,  but 
extends  to  all  trustees  in  whom  the  estate  is  vested.  It  has  been  held 
under  this  rule  that  trustees  can  sufficiently  represent  their  cestuis  que 
trust  even  in  redemption(/)  and  foreclosure  suits.(.9')  But  it  is  discre- 
tionary with  the  court  whetlaer  the  cestuis  que  triist  shall  or  not  be  made 
parties.  Where  the  trustees  fill  the  double  character  of  executors  and 
devisees  in  trust  of  the  mortgagor,  and  thus  may  be  supposed  to  have 
funds  applicable  for  the  purpose  of  redeeming,  the  court  is  disposed  to 
dispense  with  the  presence  of  the  cestuis  que  trust  ;(/i)  but  where  the 
trustees  are  trustees  of  a  settlement  merely(t)  or  where  the  court  for  other 
reasons  views  the  trustees  as  inadequate  representatives,  it  refuses  to 
adjudicate  in  the  absence  of  the  cestuis  que  trust. (^k^  And  where  a  bill 
was  filed  by  a  settlor  to  set  aside  a  settlement  as  having  been  fraudulently 
obtained  by  the  trustees,  it  was  *held  that  the  trustees  (one  of  r*ocg-i 
whom  was  entitled  beneficially  under  the  settlement  to  one-twelfth  L  J 
of  the  trust  fund,  subject  to  a  life  interest  in  the  plaintiif,)  could  not  be 
treated  as  sufficiently  representing  the  cestuis  que  trust  for  the  purposes 
of  the  suit.(^) 

By  the  47th  section  of  the  same  act  any  creditor  or  person  interested 
under  the  will  may  apply  at  chambers  for  an  order  of  administration 
where  the  whole  real  estate  is  by  devise  vested  in  the  trustees,  who  are 
empowered  to  sell,  and  authorized  to  sign  receipts  for  the  rents  and  profits 
and  produce  of  sale. (m) 

(/)  Stansfield  v.  Hobson,  16  Beav.  189. 

(g)  Sale  v.  Kitson,  3  De  Gex,  Mac.  &  Gor.  119;  Hanman  v.  Riley,  9  Hare, 
Append,  xl. 

(/<)  Hanman  v.  Riley,  9  Hare,  Append,  xl. 

(i)  Goldsmid  v.  Stonehewer,  9  Hare,  Append,  xxxviii. 

(k)  Cropper  v.  Mellersh,  1  Jur.  N.  S.  299  ;  Chaffers  v.  Baker,  5  Weekly  Rep.  32C. 

(Z)  Reed  v.  Prest,  1  K.  &.  J.  183. 

(m)  See  the  decisions  on  the  30th  order  of  August,  1841,  the  language  of  which 
is  similar,  p.  852,  supra.  Rump  v.  Graenhill,  20  Beav.  512;  Ogden  v.  Lowry,  25 
L.  J.  N.  S.  (Ch.)  198. 


(368  LEW  IN    ox    THE    LAW    OF    TRUSTS,    ETC. 

By  the  51st  section  the  court  may  adjudicate  upon  questions  in  the 
presence  of  some  only  of  the  parties  interested, (n)  and  as  to  a  portion 
only  of  the  trust  estate,(o)  and  without  taking  the  accounts. 


SECTION  II. 

OF  THE  ORDER  AND  MANNER  IN  WHICH  THE  TRUSTEES  AND  CESTUIS 
QUE  TRUST  OUGHT  TO  APPEAR  UPON  THE  RECORD,  AS  WHETHER 
JOINTLY   OR   SEVERALLY   AS   PLAINTIFFS   OR   DEFENDANTS. 

In  a  contest  between  the  trust  on  the  one  hand,  and  a  stranger  on  tlte 
other,  the  trustees  and  ccstuis  que  trust  represent  but  one  interest,  and 
costs  must  not  be  multiplied  unnecessarily  by  the  severance  of  them  in 
the  suit. 

It  was  said  by  Sir  Anthony  Hart,  that  a  cestui  que  trust  about  to  file 
his  bill,  ought  to  apply  to  his  trustee  to  allow  his  name  to  be  used  as  a 
co-plaintiff.  This  (he  said)  the  trustee  is  bound  to  comply  with  upon 
being  indemnified  against  costs.  Should  the  trustee  refuse,  he  would  be 
departing  from  his  duty,  and  in  such  a  ease  would  not  be  entitled  to  his 
costs  when  made  defendant,  in  consequence  of  his  refusal.  But  where 
no  application  is  made  to  the  trustee  to  permit  his  name  to  be  used  as 
r*8f;7n  co-plaintiff,  he  is  in  no  default,  and  the  cestui  que  trust  would  *be 
L  -I  bound  to  pay  the  costs  of  the  trustee  for  his  unreasonable  negli- 
gence in  not  having  required  the  trustee  to  be  co-plaintiff. (p)  And 
where  there  is  a  just  ground  of  suit,  it  is  the  duty  of  a  trustee  to  allow 
himself  to  be  made  a  co-plaintiff. (5) 

Upon  the  same  principle,  where  a  trustee  and  cestui  que  trust  are  made 
defendants  in  the  same  right,  as  they  have  an  identity  of  interest  they 
ought  not  to  split  the  defence,  and  file  separate  answers  ;(r)  not  that  a 
trustee  and  his  cestui  que  trust  can  be  compelled  to  join  in  their  de- 
fence 5(.s)  but  if  they  do  not  they  will  be  mulcted  in  costs,  as  only  one  set 
of  costs  will  be  decreed  against  the  plaintiff. (^) 

In  suits  between  trustees  and  cestuis  que  trust,  inter  se,  it  is  equally 
the  rule  that  all  the  cestuis  que  trust  in  the  same  interest  should  sue  as 
co-plaintiffs  •,h(\  or  if  the  bill  is  by  a  trustee  that  he  should  join  his  co- 
trustees with  him,  unless  there  be  some  special  circumstance  demanding 
a  severance. 

So,  as  a  general  rule,  in  suits  of  every  description,  joint  trustees  should 
make  a  joint  defence,  and  if  they  put  in  separate  answers,  one  set  of  costs 
only  will  be  allowed,  which,  if  they  be  equally  in  fault,  will  be  appor- 

(«)  See  Doodj  v.  Higgins,  9  Hare,  Append,  xxxii. 

(0)  Prentice  v.  Prentice,  10  Hare,  Append,  xxii. 

(p)  Reade  V.  Sparks,  1  Moll.  8,  II  ;  but  see  Browne  v.  Lockhart,  10  Sim.  426. 

(q)  Hughes  v.  Key,  20  Beav.  395. 

(r)  Reade  V.  Sparks.  1  Moll.  10,  12,  per  Sir.  A.  Hart ;  'Woods  v.  Woods,  5  Hare, 
229  ;  Farr  v.  Sheriffe,  4  Hare,  528. 

h)  Van  Sandau  v.  Moore,  1  Russ.  441  ;  reversing  S.  C.  2  S.  &  S.  509. 

(t)  Cuddy  V.  WaldroD,  I  Moll.  14;  Homan  v.  Hague,  1  Moll.  14;  Galwav  v. 
Butler,  1  Moll.  13. 

(m)  See  Hosking  v.  Nicholls,  1  Y.  &  C.  Ch.  Ca.  478. 


PLEADING    AND    PRACTICE.  669 

tioned  amongst  them.(v)  But  if  there  be  two  trustees,  and  one  be  willing 
to  join,  and  the  other  refuse,  who  afterwards  puts  in  an  answer,  and  shows 
no  reason  for  his  refusal,  the  single  costs  allowed  will  be  given  exclusively 
to  the  trustee  who  expressed  a  willingness  to  join.(i^)  And  where  two 
trustees  severed  in  their  defence  one  of  whom  was  charged  with  miscon- 
duct, the  court  held  that  the  innocent  trustee  was  justified  in  severing, 
and  while  allowing  one  set  of  costs  gave  the  whole  of  them  to  him. (a;) 
However,  *where  the  court  sees  there  is  a  substantial  reason  for  ^,,.0^0-, 
it,  as  where  one  trustee  has  a  personal  interest  which  conflicts  L  J 
with  his  duty  as  trustee,  or  where  one  can  admit  facts  which  the  other 
believes  not  to  be  true,(.y)  or  where  the  co-trustees  reside  at  such  a  dis- 
tance from  each  other  that  a  joint  answer  is  impracticable,('z)  or  where 
other  special  grounds  exist,(a)  the  several  trustees  will  be  allowed  to  put 
in  separate  answers,  and  each  will  be  allowed  his  full  costs. 

K  feme  covert  entitled  to  her  separate  use  cannot  join  her  husband  as 
co-plaintiff,  but  must  sue  by  her  next  friend,  making  her  husband  a 
defendant,  who,  under  such  circumstances,  will  be  entitled  to  his  costs  •,[h\ 
and  if  she  be  made  a  defendant  in  respect  of  such  an  interest,  she  should 
obtain  an  order  to  defend  separately. (c)  But  the  mere  fact  of  a  femn 
covert  living  apart  from  her  husband,  does  not  entitle  her  to  appear 
separately  at  the  costs  of  a  trust  estate  under  administration,  where  the 
interest  which  she  claims  is  not  settled  to  her  separate  use.(fZ) 


SECTION  III. 

OF    DISTRINGAS. 

In  the  case  of  stock  transferable  in  the  books  of  the  Bank  of  England, 
and  also  in  the  case  of  the  stock  and  shares  of  many  other  public  com- 
panies, no  obligation  exists  on  the  part  of  the  bank  or  public  company  to 
look  beyond  the  title  of  the  legal  holder.  The  modern  form  of  legislative 
enactment  on  the  subject  is  usually  to  the  effect  that  the  company  '<  shall 
not  be  *bound  to  see  to  the  execution  of  any  trust,  whether  ex-  |.^„^„ 
press,  implied,  or  constructive." (e)  Where,  therefore,  property  L  J 
of  this  description  is  held  upon  trust,  the  interests  of  the  cestui  que  trust 
are  peculiarly  liable  to  be  endangered  by  the  dishonesty  of  the  trustee  ; 

(y)  Nicliolsou  v.  FalLdner,  1  Moll.  559,  per  Sir  A.  Hart ;  Gaunt  v.  Taylor,  2 
Beav.  347,  per  Lord  Langdale. 

(w)  Young  V.  Scott,  1  Jones,  Ir.  Exch.  71  ;  and  see  Attorney-General  v.  Cuming, 
2  Y.  &  C.  Ch.  Ca.  156. 

(z)  Webb  V.  Webb,  IG  Sim.  55.  (y)  Gaunt  v.  Taylor,  2  Beav.  346. 

(z)  Aldridge  v.  Westhrook,  4  Beav.  212  :  Dudgeon  v.  Gornilcy,  2  Conn.  &  Laws. 
422  :  Nicholson  v.  Falkiner,  1  Moll.  560  ;'  Wiles  v.  Cooper,  9  Beav.  294;  but  see 
Farr  v.  Sheriffe,  4  Hare,  528. 

(a)  Anon,  case,  cited  Barry  v.  Woodham,  1  Y.  &  C.  538  ;  Nicholson  v.  Falkiner, 
1  Moll.  555,  see  560  ;  Reade  v.  Sparkes,  1  Moll.  10,  per  Sir  A.  Hart ;  Kampfv. 
Jones,  C.  P.  Cooper's  Rep.  1837-38,  13  ;  and  see  Walsh  v.  Dillon,  1  Moll.  13. 

(b)  Thorby  v.  Yeats,  1  Y.  &  C.  Ch.  Ca.  438. 

(c)  See  Norris  v.  Wright,  14  Beav.  303  ;  and  p.  633,  supra. 

(d)  Garey  v.  Whittiugham,  5  Beav.  270;  and  see  Barry  v.  Woodham.  1  Y.  &  C. 
538. 

(e)  8  Vict.  c.  16,  s.  20. 


G70       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

and,  indeed,  but  for  the  means  of  protection  now  abo'ut  to  be  explained, 
would  be  almost  entirely  at  his  mercy. 

The  distrinQas  was  originally  a  process  of  the  equity  side  (now  abolished) 
of  the  court  of  exchequer  for  compelling  the  appearance  of  a  corporation 
to  a  bill  filed,  but  formerly  it  was  a  common  practice,  more  particularly 
in  any  emergency,  to  issue  a  subpoena  before  the  bill  was  actually  on  the 
file.  When,  therefore,  a  party  sought  to  restrain  a  transfer  of  stock, 
before  he  filed  the  bill  against  the  holder  of  the  stock  and  the  bank  (who 
were  then  necessary  parties,)  to  prevent  any  mischief  in  the  interim  he 
served  process  immediately  on  the  secretary  of  the  bank  to  appear  to  the 
bill.  But  as  the  form  of  disti-ingas  gave  no  information  as  to  the  stock 
to  be  restrained,  the  distringas  was  accompanied  with  a  notice  in  writ- 
ing, which  specified  the  stock,  and  required  the  bank  not  to  permit  the 
transfer.  The  efi'ect  of  this  was,  that  if  the  holder  of  the  stock  applied 
to  the  bank  to  make  a  transfer,  the  bank  immediately  forwarded  a  notice 
to  the  party  issuing  the  distringas,  that  unless  he  actually  filed  a  bill, 
and  obtained  and  served  an  injunction  before  a  certain  day,  they  should 
permit  the  transfer  to  be  made. 

The  4  Anne,  c.  16,  s.  22,  declared  that  no  subpoena  or  other  process 
for  appearance  should  issue  until  after  the  bill  was  filed;  and  the  39  & 
40  Gr.  3,  c.  36,  enable  suitors  to  obtain  an  injunction  against  the  bank, 
without  making  the  bank  a  party.  However,  in  practice  the  distringas 
still  continued  to  be  served  on  the  bank,  and  the  same  attention  was 
paid  to  it  in  not  allowing  a  transfer. 

The  convenience  of  the  distringas  was  so  sensibly  felt,  from  the  fre- 
quent necessity  of  laying  an  embargo  upon  stock  at  a  moment's  notice, 
that  when  the  5  Vict.  c.  5,  abolished  the  equity  side  of  the  exchequer, 
r*8601  ^*  ^^^  thought  expedient  to  *transfer  the  process  to  the  court  of 
■-         J  chancery,  and  enlarge  the  remedy. 

Accordingly,  by  section  4  of  the  act  referred  to,  it  was  by  way  of 
additional  remedy  enacted,  that  <'  it  should  be  lawful  for  the  court  of 
chancery,  upon  the  application  of  any  party  interested,  by  motion  or 
jjefition,  in  a  summary  way  without  bill  fled,  to  restrain  the  Bank  of 
England  or  other  company,  whether  incorporated  or  not,  from  permitting 
the  transfer  of  any  stock  in  the  public  funds,  or  any  stock  or  shares  in 
any  public  company,  or  from  paying  any  dividend  or  dividends  due  or 
to  become  due  thereon ;  and  every  order  of  the  court  upon  such  motion 
or  petition  should  specify  the  amount  of  the  stock,  or  the  particular  shares 
to  be  afi"ected  thereby,  and  the  name  or  names  of  the  person  or  p>ersons, 
body  politic  or  corporate,  in  which  the  same  should  be  standing." 

An  application  to  the  court  under  this  section  must  be  founded  upon  an 
affidavit  verifying  the  special  grounds  upon  which  it  proceeds.(/)  And 
when  the  order  has  been  made,  as  it  was  not  the  intention  of  the  legisla- 
ture to  do  more  than  protect  the  stock  until  the  party  could  assert  his 
right  in  the  ordinary  way,  if  the  opposite  party  move  to  dissolve  the 
injunction,  and  the  court  sees  that  there  has  been  great  neglect  on  the 
part  of  the  person  who  obtained  the  order,  and  that  any  extension  of 


(/)  Ex  parte  Field,  1  Y.  &  C.  Ch.  Ca.  1  ;  Re  Marquis  of  Hertford,  1  Hare, 


586. 


I 


PLEADING    AND    PRACTICE.  (371 

time  would  be  oppressive  to  the  party  restrained,  it  will  not  as  of  course 
give  further  time  for  filing  the  bill.(^)  When  a  bill  has  been  filed,  and 
an  answer  put  in,  and  the  defendant  moves  to  discharge  the  restraining 
order,  the  plaintiff  may  file  affidavits  in  opposition  to  the  answer,  and  is 
not  confined  to  the  merits  disclosed  in  the  answer.  ^7i) 

By  section  5  of  the  act  it  is  thus  enacted^  "  In  the  place  and  stead  of 
the  writ  of  distringas,  as  the  same  has  been  heretofore  issued  from  the 
court  of  exchequer,  a  writ  of  distringas  in  the  form  set  out  in  the  sche- 
dule to  the  act  shall  be  issuable  from  the  court  of  chancery,  and  shall 
be  sealed  at  the  subpoena  *office,  and  the  force  and  efi"ect  of  such  r-;^n.?i-i 
writ,  and  the  practice  under  or  relating  to  the  same,  shall  be  such  •-  -i 
as  is  now  in  force  in  the  said  court  of  exchequer  ;  provided,  nevertheless, 
that  such  writ,  and  the  practice  under  or  relating  to  the  same,  and  the 
fees  and  allowances  in  respect  thereof,  shall  be  subject  to  such  orders 
and  regulations  as  may,  under  the  provisions  of  this  act,  or  of  any  other 
act  now  in  force,  or  under  the  general  authority  of  the  court  of  chancery, 
be  made  with  reference  to  the  proceedings  and  practice  of  the  court  of 
chancery." 

In  the  schedule  to  the  act,  the  form  of  the  writ  is  as  follows  :  "  Victo- 
ria, &c.,  to  the  sherifis  of  London  greeting.  We  command  you  that  you 
omit  not,  by  reason  of  any  liberty,  but  that  you  enter  the  same,  and  dis- 
train the  governor  and  company  of  the  Bank  of  England  by  all  their 
lands  and  chattels  in  your  bailiwick,  so  that  they,  or  any  of  them,  do  not 
intermeddle  therewith  until  We  otherwise  command  you  ;  and  that  you 
answer  us  the  issue  of  the  said  lands,  so  that  they  do  appear  hefore  tis 
in  our  High  Court  of  Chancery  on  the  day  of  ,  to  answer  a 

certarin  hill  of  comjilaint  lately  exhibited  against  them  and  other  defen- 
dants before  us  in  our  said  court  of  chancery  by  complai- 
nant;  and  further,  to  do  and  receive  what  our  said  court  shall  then  and 
there  order  in  the  premises,  and  that  you  then  leave  there  this  writ. 
Witness  &c." 

The  act,  as  we  have  seen,  empowered  the  court  to  regulate  the  prac- 
tice of  the  distringas,  and  orders  were  issued  in  consequence  to  the 
following  effect : — 

1.  That  any  person  claiming  to  be  interested  in  any  stock  transferable 
at  the  Bank  of  England  may  by  his  solicitor  prepare  a  writ  of  distringas 
in  the  form  set  out  in  the  schedule  to  the  act,  and  present  the  same  for 
sealing  at  the  subpoena  office. (i) 

2.  That  such  person  must,  before  the  writ  is  sealed,  leave  at  the  sub- 
poena office  an  affidavit  sworn  by  him  or  his  solicitor  in  the  following 
form  : — (Jc) 

*"  A.  B."  (the  name  of  the  party  or  parties  in  whose  behalf  r^oppn 
the  writ  is  sued  out)  "  v.  the  Governor  and  Company  of  the  Bank  L  "^J 
of  England." 

(ff)  In  re  Marquis  of  Hertford.  1  Hare,  584.     See  same  case,  1  Phil.  203. 

(h)  In  re  Marquis  of  Hertford,!  Phil.  203.     See  now  15  &  16  V.  c.  86,  s.  59. 

(i)   1  Order  of  17  Nov.  1841,  3  Beav.  xxxiii. 

(k)  2  Order  of  17  Nov.  1841,  3  Beav.  xxxiii;  and  Order  of  Dec.  10,  1841,  cor- 
recting the  form  of  afiBdavit  at  the  foot  of  the  Orders  of  the  17  Nov.  1841,  ib. 
xxxviii. 


672 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


«  J ,  of ,  do  solemnly  swear,  that,  according  to 

the  best  of  my  knowledge,  information,  and  belief,  I  am"  (or  if  the  affidavit 

is  made  by  the  solicitor,  ''A.  B.  of ,  is)  beneficially  interested 

in  the  stock  hereinafter  particularly  described,  that  is  to  say"  (here 
specify  the  amount  of  the  stock  to  be  affected  by  the  writ,  and  the  name 
or  names  of  the  person  or  persons,  or  body  politic  or  corporate,  in  whose 
name  or  names  the  same  shall  be  standing.) 

3.  That  such  writ  of  distringas,  and  all  process  thereunder,  may  be 
discharged  by  order  of  the  court,  to  be  obtained,  as  of  course,  by  the 
party  on  whose  behalf  the  writ  was  issued ;  and  to  be  obtained  upon  the 
application  by  motion  or  petition  of  any  other  person  claiming  to  be 
interested  in  the  stock  sought  to  be  affected.  And  power  is  given  to  the 
court  to  deal  with  the  costs  as  may  seem  just.(?) 

4.  <'That  the  bank  having  been  served  with  such  writ  of  distringas, 
and  a  notice  not  to  permit  the  transfer  of  the  stock  in  such  notice  and 
in  the  said  affidavit  specified,  or  not  to  pay  the  dividends  thereon,  and 
having  afterwards  received  a  request  from  the  party  or  parties  in  whose 
name  or  names  such  stock  shall  be  standing,  or  some  person  on  his  or 
their  behalf,  or  representing  him  or  them,  to  allow  such  transfer,  or  to  pay 
such  dividends,  shall  not  by  force,  or  in  consequence  of  such  distringas, 
be  authorized  without  the  order  of  the  court  to  refuse  to  permit  such 
transfer  to  be  made,  or  to  withhold  payment  of  such  dividends  for  more 
than  eight  days  after  the  date  of  such  request." (^ni^ 

5.  That  the  patentee  of  the  subpoena  office  shall  cause  the  affidavit  to 
be  filed  and  registered  at  the  office  of  the  clerk  of  the  affidavits. (?<) 

The  present  course,  therefore,  is  this.  The  solicitor  of  the  party 
P^opq-|  seeking  the  distringas  prepares  a  writ  of  distringas  in  *the«form 
L  -I  required  by  the  act,  and  the  party  or  his  solicitor  swears  an  affi- 
davit in  the  form  required  by  the  general  order.  The  writ  and  affidavit 
are  then  taken  to  the  subpcena  office,  the  former  to  be  sealed,  and  the 
latter  to  be  left  for  filing.  A  notice  in  writing  is  then  prepared  that 
the  bank  is  not  to  permit  the  transfer  of  the  stock  or  payment  of  the 
dividends  upon  which  the  restraint  is  sought,  and  the  distringas  and 
notice  are  then  served  on  the  secretary  of  the  bank.  The  result  is,  that 
when  the  holder  of  the  stock  requests  a  transfer  of  the  stock  or  payment 
of  the  dividends,  the  bank  immediately  forwards  a  notice  to  the  party 
who  issued  the  distringas,  that  unless  he  file  a  bill  and  obtain  and  serve 
an  injunction  within  eight  days  from  the  date  of  such  request,  the  trans- 
fer or  payment  will  be  made.  The  party  must,  of  course,  be  then  upon 
the  alert  to  file  a  bill  and  obtain  and  serve  the  injunction  before  the 
eight  days  have  expired. 

Between  the  remedy  given  by  the  4th  section  and  that  given  by  the 
5th  section  of  the  act,  the  following  distinctions  exist.  The  former  applies 
not  merely  to  stock  in  the  funds,  but  to  stock  and  shares  of  public  com- 
panies, whether  incorporated  or  not ;  while  the  latter  (whether  inten- 
tionally or  not  may  be  doubted)  is,  by  the  joint  effect  of  the  schedule  to 
the  act  of  parliament  and  of  the  orders  of  the  Court  of  Chancery  before 

(l)  3  Order  of  H  Nov.  ]  841,  3  Beav.  xxxiv.  [m)  4  Order,  ib.  xxxiv. 

(n)  5  Order  of  same  date,  3  Beav.  xxxiv. 


PLEADING    AND    PRACTICE.  673 

referred  to,  confined  to  stock  transferable  at  the  Bank  of  England. 
Again,  the  distringas  under  the  5th  section  may  be,  and  is  in  fact,  fre- 
quently obtained,  not  from  any  fear  of  immediate  danger,  but  as  a  general 
safeguard  merely  •,{o\  whereas  a  special  case  must  be  made  in  order  to 
obtain  a  restraining  order  under  the  4th  section. Qj)  It  is,  indeed,  much 
to  be  regretted  that  this  extremely  useful  process  should  be  limited  in  its 
application  to  stock  in  the  public  funds  and  government  annuities. 

As  respects  stock  in  the  funds,  the  distringas  under  the  5th  section, 
and  the  restraining  order  under  the  4th  section,  may  both  occasionally 
be  resorted  to  should  circumstances  require  it ;  for  the  adoption  of  either 
remedy  is  not  an  election  of  the  *one  to  the  exclusion  of  the  i-jicof^^-i 
other.(g')  "■  The  4th  clause,"  said  Sir  J.  Wigram,  "  was  intended  L  J 
for  interim  purposes  to  protect  stock  until  the  party  claiming  it  should 
have  an  opportunity  of  asserting  his  rights  by  bill  in  the  ordinary  way, 
an  opportunity  often  wanting  from  the  facility  with  which  that  species  of 
property  is  transferred  from  hand  to  hand,  and  which  the  common  dis- 
tringas, preserved  by  the  5th  section,  does  not  in  all  cases  afford.  A 
distringas  remains  ^qu.  restrains]  only  at  the  discretion  of  the  bank. 
The  restraining  order,  which  the  4th  section  enables  the  court  to  grant, 
is  imperative;  it  continues  so  long  as  the  court  sees  fit  to  direct,  and  can 
only  be  discharged  in  the  meantime  upon  the  application  of  the  parties 
interested.  Cases  might  arise  in  which  from  the  discovery  of  new  matter 
after  a  distringas  had  issued,  or  from  the  bank  peremptorily,  but  errone- 
ously refusing  to  notice  a  distringas,  or  perhaps  from  other  causes,  the 
party  who  obtained  that  writ  might  notwithstanding,  upon  a  full  disclo- 
sure of  the  facts  in  a  case  of  merits  and  urgency,  entitle  himself  to  a 
restraining  order  under  the  4th  section. 'Y?) 


SECTION  IV. 

OF   COMPULSORY   PAYMENT   INTO   COURT. 

The  rule  as  laid  down  by  Lord  Eldon,  and  which  has  ever  since  been 
acquiesced  in,  is,  that  to  call  for  payment  of  money  into  court,  «  the 
plaintiff  must  either  be  solely  entitled  to  the  fund  or  have  acquired  in  the 
icliole  of  the  fund  such  an  interest,  together  tvith  others,  as  entitles  him 
on  his  own  behalf,  and  the  hehalf  of  those  others,  to  have  the  fund  secured 
in  court."(s)  It  is  not  indispensable  that  the  plaintiff  should  be  the 
person  exclusively  interested ;  but  if  he  have  a  partial  interest,  it  is 
enough,  provided  all  the  other  persons  interested  *in  the  fund  r:);^^^,--] 
are  before  the  court,(^)  and  the  court  may  and  occasionally  will  L  "  J 
make  orders  for  payment  into  court,  although  some  of  the  persons  inte- 

(o)   See  Etty  v.  Bridges,  1  Y.  &  C.  Ch.  Ca.  486.         (p)  Note  (/),  p.  860,  supra. 

(q)  In  re  Marquis  of  Hertford,  1  Hare,  584  ;   1  PhiL  129. 

(r)  In  re  Marquis  of  Hertford,  I  Hare,  590. 

(4  Freeman  v.  Fairlie,  3  Mer.  29  ;  and  see  Dubless  v.  Flint,  4  M.  &  C.  502  ; 
M'Hardy  v.  Hitchcock,  11  Bear.  77. 

(i)  Whitemarsh  v.  Robertson,  4  Beav.  26 ;  Bartlett  v.  Bartlett,  4  Hare,  631  ;  but 
see  Ross  v.  Ross,  12  Beav.  89. 


674 


LEWIN    ON    THE    LAAV    OF    TRUSTS,    ETC. 


rested  in  the  money  are  not  before  it.(«)  And  where,  under  the  new 
practice  the  other  persons  interested  are  not  necessary  parties  to  the 
suit,  payment  into  court  may  be  obtained  without  service  on  them  of  the 
notice  of  motion  -Jv)  but  where  the  cestuis  que  trust  had  been  served  with 
a  copy  of  a  bill  for  the  appointment  of  new  trustees  which  prayed  a  trans- 
fer to  the  new  trustees,  the  court  held  that  they  must  be  served  with 
notice  of  a  motion  to  transfer  the  fund  into  court.((/-) 

If  the  defendant  admits  himself  to  be  a  trustee,  but  it  remains  to  be 
ascertained  whether  he  is  a  trustee  for  the  plaintiff  or  for  other  parties, 
the  plaintiff  may  move  upon  his  possible  title,  where  all  persons  are  before 
the  court  among  whom  there  will  be  found  some  one  who  is  entitled.(a:) 
<an  a  contest  as  to  the  title  to  any  particular  property,"  said  Lord  Cot- 
tenham,  "  the  court  will,  in  some  cases,  take  possession  of  the  subject- 
matter  of  the  contest  for  security  until  it  adjudicates  upon  the  right. 
Such  cases  generally  arise  when  the  property  is  in  the  hands  of  stake- 
holders, factors,  or  trustees  who  do  not  themselves  claim  any  title  to  it. 
In  ordering  money  into  court  under  such  circumstances,  the  court  does 
not  disturb  the  possession  of  any  party  claiming  title,  or  direct  a  payment 
before  the  liability  to  pay  is  established. "(y)  Occasionally,  where  the 
fund  is  clear,  and  is  divisible  between  the  plaintiff  and  defendant  in  cer- 
tain proportions,  the  court  has  ordered  the  defendant  to  pay  into  court 
the  share  only  of  the  plaintiff.(2:) 

The  merits  upon  which  the  motion  is  founded  must  be  admitted  by  the 
r*8m  defendant's  answer,  and  no  evidence  to  this  *effect  can  be  ad- 
L  -1  duced  aUunde.(a)  Thus,  if  money  bestanding  in  the  joint  names 
of  several  persons,  as  of  three  trustees,  it  cannot  be  ordered  into  court  on 
the  admission  of  the  specific  sum  by  one,  though  the  others  admit  that  a 
sum  is  standing  in  their  joint  names,  and  the  plaintiff  offers  to  read  affi- 
davits sworn  by  them,  from  which  the  amount  of  the  sum  would  appear.^//) 

And  it  would  seem  that  not  only  must  the  plaintiff  be  able  to  read 
from  the  answer  an  admission  of  the  defendant's  receipt  of  the  money, 
but  also  an  admission  of  his  own  title,  or  probable  title,  e.  g.  as  next  of 
kin,  heir-at-law,  &c.,  and  that  if  the  defendant  ignores  the  plaintiff's 
title,  the  money  will  not  be  ordered  into  court. (c) 

The  plaintiff  cannot  ask  for  payment  of  money  into  court  upon  the 
footing  of  an  equity  not  alleged  by  the  bill,  but  only  stated  by  the  answer. 
Thus,  where  the  plaintiff  filed  a  bill  claiming  one-fifth  of  the  residuary 

M  Wilton  V.  Hill,  2  De  Gex.  Mac.  &  Gor.  807. 

(v)  Marryat  v.  Marryat,  23  L.  J.  Ch.  876. 

(w)  Lewellin  v.  Cobbold,  1  Sm.  &  Giff.  572. 

(z)  See  Bolder  v.  Bank  of  England,  10  Ves.  355  ;  but  see  cases  note  (c),  p.  865. 

(y)  Richardson  v.  Bank  of  England,  4  M.  &  C.  171. 

(z)  Rogers  v.  Rogers,  1  Anst.  174  ;  see  Score  v.  Ford,  7  Beav.  336. 

(a)  Beaumont  v.  Meredith,  3  V.  &  B.  181,  per  Lord  Eldon  ;  Richardson  v.  Bank 
of  England,  4  M.  &  C.  171,  175,  per  Lord  Cottenham  ;  Dubless  v.  Flint,  4  M.  &  C. 
502  ;  Black  v.  Creighton,  2  Moll.  554,  per  Sir  A.  Hart ;  and  see  Green  v.  Pledger. 
3  Hare,  171.  The  59th  sect,  of  the  15th  &  16th  Vict.  c.  86,  directing  the  defen- 
dant's answer  to  be  viewed  merely  as  an  affidavit  in  motions  for  injunction  or 
receiver,  &c.,  does  not  touch  motions  for  payment  into  court. 

(b)  Boschetti  v.  Power,  8  Beav.  98. 

(c)  Dubless  v.  Flint,  4  M.  &  0.  502  ;  M'Hardy  v.  Hitchcock,  11  Bear.  73. 


PLEADING    AND    PRACTICE.  675 

estate  of  a  testator  asking  relief,  as  in  a  case  of  an  open  account,  and  the 
defendant  by  Lis  answer  stated  a  deed  amounting  to  a  settlement  of 
account  under  which  he  admitted  a  sum  to  be  due  from  him,  it  was  held 
that  the  plaintiff  could  not  without  amending  his  bill  obtain  payment 
into  court  of  the  sum  so  admitted  to  be  due.((:Z) 

It  is  not  necessary  that  the  defendant  should  acknowledge  the  fund  to 
be  in  his  hands  at  the  time  of  the  answer ;  for  if  he  admit  that  he  once 
actually  received  it,  and  state  that  he  afterwards  applied  it  in  a  way  not 
authorized  by  the  trust,  the  court  will  fasten  upon  the  receipt  and  not 
allow  him  to  discharge  himself  by  pleading  a  breach  of  duty ;  as  if  a 
trustee  admit  that  he  had  a  fund  in  his  hands,  but  says  that  he  afterwards 
*sold  it  out  and  did  not  re-invest  it,(e)  or  paid  it  away  improper-  r^ggy-i 
ly,(/)  or  lent  it  on  personal(^)  or  other  security,(/i)  not  within  L  J 
the  terms  of  the  trust.  And  no  attention  will  be  paid  to  the  objection 
that  the  bill  was  for  the  very  purpose  of  securing  the  fund,  and  therefore 
that  the  money  ought  not  to  be  ordered  into  court  until  the  decree. (i) 

But  if  an  executor  (and  the  rule  must  apply  equally  to  a  trustee) 
admits  in  his  answer  that  he  has  received  a  specific  sum,  but  adds  that 
he  has  made  payments,  the  amount  whereof  he  does  not  specify,  in 
respect  of  the  testator's  estate,  the  court  will  allow  him  to  verify  by  affi- 
davit the  amount  of  the  payments  properly  made,  and  will  order  him  to 
pay  in  the  actual  balance. (A:) 

Payment  of  money  into  court  is,  in  general,  confined  to  the  eases  of  a 
defendant's  admission  of  actual  possession  of  the  fund,  or  of  a  receipt  not 
followed  by  any  subsequent  legal  discharge,  and  is  not  ordered  upon  a 
mere  admission  of  facts  from  which  a  liability  may  be  inferred. (Z)  Thus, 
if  a  defendant  admit  that  he  has  had  a  fund  in  his  hands  from  a  certain 
time,  and  it  clearly  appears  from  the  answer  that  he  is  liable  and  will  be 
decreed  at  the  hearing  to  pay  interest ;  yet  the  court  will  not  order  him 
to  pay  interest  on  motion, (???)  unless  he  also  admit  that  he  has  actually 
made  interest,  which  amounts  to  a  receipt.(n) 

The  case  of  Kothwell  v.  Rothwell(o)  is  no  exception  to  the  r^ggg-j 
*rule,  for  there  the  defendant  had  covenanted  with  the  trustees  l  -• 
of  his  marriage  settlement  to  pay  850^.  within  twelve  months  from  the 

(d)  Proudfoot  v.  Hume,  4  Beav.  476. 

(e)  Wiglesworth  v.  Wiglesworth,  16  Beav.  272  ;  Phillipo  v.  Munnings,  2  M.  & 
C.  309 ;  and  see  Meyer  v.  Montriou,  4  Beav.  346 ;  Futter  v.  Jackson,  6  Beav.  424. 

(/)  See  Scott  v.  Becher,  4  Price,  350  ;  Meyer  v.  Montriou,  4  Beav.  343  ;  Nokes 
v.  Seppings,  2  Phill.  19. 

(ff)  Vigrass  v.  Binfield,  3  Mad.  62  ;  Collis  v.  Collis,  2  Sim.  365 ;  Koy  v.  Gibbon, 

4  Hare,  65.  tt-    j 

(h)  Wyatt  v.  Sharratt,  3  Beav.  498  ;  Costeker  v.  Horrox,  3  Y.  &  C.  530 ;  Hinde 
T.  Blake,  4  Beav.  597  ;  Bourne  v.  Mole,  8  Beav.  177. 

{i)  See  Rothwell  v.  Rothwell,  2  S.  &  S.  217  ;  Wyatt  v.  Sharratt,  3  Beav.  498  ; 
Collis  V.  Collis,  2  Sim.  365. 

(k)  Anon.  4  Sim,  359  ;  aud  see  Proudfoot  v.  Hume,  4  Beav.  476 ;  Roy  v.  Gib- 
bon, 4  Hare,  65. 

(l)  See  Richardson  v.  Bank  of  England,  4  M.  &  C.  174;  Peacham  v.  Daw,  6 
Mad.  98. 

(m)  Wood  V.  Downes,  1  V.  &  B.  50. 

(n)  Freeman  v.  Fairlie,  3  Mer.  43  ;  see  Wood  v.  Downes,  1  V.  &  B.  50, 

(o)  2  S.  &  S.  217  ;  see  Richardson  v.  Bank  of  England,  4  M.  &  C.  174. 


676  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

marriage ;  and  the  covenant  not  having  been  performed,  the  children 
filed  a  bill  against  their  parents  and  the  trustees  to  have  the  money 
raised ;  and  defendant  admitting  '^  that  the  850^.  had  not  been  got  in, 
but  that  it  was  still  in  his  hands,"  the  court  ordered  the  payment  into 
court,  not  on  the  admission  of  the  debt,  but  "  that  it  was  still  in  his 

hands." 

However,  in  some  cases  the  court  orders  payment  into  court  upon 
motion  of  what  is  apparently  a  mere  debt ;  as  where  an  executor  or 
trustee  admits  himself  to  owe  a  debt  to  the  estate  he  represents,  for  here 
the  person  to  pay  and  the  person  to  receive  being  the  same,  the  court 
assumes  that  what  ought  to  have  been  done  has  been  done,  and  orders 
the  payment,  not  as  of  a  debt  by  a  debtor,  but  as  of  moneys  realized  in 
the  hands  of  of  the  executor  or  trustee.(p)  Thus  where  A.,  B.,  and  C, 
were  appointed  executors  of  a  will,  of  whom  A.  and  C.  alone  proved,  and 
A.  and  B.  were  appointed  trustees,  and  a  bill  was  filed  by  A.  for  the 
administration  of  the  trusts  of  the  will,  and  B.  by  his  answer  admitted 
that  he  and  his  partner  G.  B.  were  indebted  to  the  testatrix  at  the  time 
of  her  decease,  and  that  part  of  the  assets  had  been  lent  to  the  partner- 
ship by  C,  and  that  the  partners  had  paid  some  of  the  testatrix's  debts, 
and  that  the  sum  of  1137/.  7s.  lOacA  was  due  from  the  partnership  to  the 
estate  on  the  balance  of  accounts,  the  court  held,  notwithstanding  B.'s 
assertion  to  the  contrary  in  his  answer,  that  he  must  be  deemed  to  have 
acted,  and  ordered  him  to  pay  the  debt  due  from  his  co-partner  and  him- 
self into  court. ((/) 

The  court  will  occasionally  make  an  order  for  payment  into  the  court 
at  the  hearing  of  the  cause  "ex  dchito  Just  ilia,"  though  it  might  have 
hesitated  to  do  so  upon  an  interlocutory  application  by  motion  ;  as  where 
a  plaintifi"  having  only  a  remote  contingent  interest  in  a  fund  claims  at 
the  hearing  to  have  the  fund  brought  into  court.(/*)  And  now  that  under 
r*srQ1  *^^^  "^^  practice  any  material  circumstances  not  in  issue  may  be 
L  J  brought  before  the  court  by  affidavit  at  the  hearing,  an  order  for 
payment  into  court  will  be  made  at  the  hearing,  if  proper,  without  any 
notice  of  motion  for  that  purpose. (.s) 

The  time  to  be  given  for  payment  of  money  into  court  will  depend  on 
the  circumstances  of  the  case.  If  it  be  mon^ey  in  the  defendant's  hands, 
it  will  be  ordered  in  forthwith,  and  an  immediate  transfer  may  be  directed 
of  stock  standing  in  the  defendant's  name  ;  but  in  the  latter  case  it  will 
be  borne  in  mind,  that  during  certain  periods  of  the  year  the  transfer 
books  are  closed.  Where  the  defendant  had  improperly  lent  a  sum  on 
personal  security,  but  no  insolvency  was  suggested  or  any  danger  as  to 
the  money,  the  court  ordered  it  to  be  paid  in  on  or  before  the  first  day  of 
the  following  term.(^)  In  another  case,  where  the  defendant  had  lent 
820/.  upon  a  mortgage  not  authorized  by  the  trust,  the  court  allowed  six 

(jo)  Richardson  v.  Bank  of  England,  4  M.  &  C.  174,  per  Lord  Cottenham. 
iq)  White  v.  Barton,  18  Beav.  192. 

(r)  Governesses'  Institution  v.  Rusbridger,  18  Beav.  467. 
(s)  Isaacs  v.  Weatherstone,  10  Hare,  Appendix,  xxx. 

(0  Vigrass  v.  Binfield,  3  Mad.  62  ;  and  see  Hinde  v.  Blake,  4  Beav.  597  ;  Ray  v. 
Gibbon,  4  Hare,  65. 


PLEADING    AND    PRACTICE.  677 

weeks,  with  liberty  to  apply  for  furtlier  time  if  the  circumstances  should 
then  warrant  the  indulgence. (?i) 

Where  a  distringas  or  injunction  has  been  previously  obtained  against 
the  transfer  of  the  stock,  the  court  orders  the  transfer  into  court  to  be 
made,  <<  notwithstanding  the  distringas  or  injunction." 


SECTION  V. 

OF   RECEIVERSHIP. 

As  the  cestuis  que  trust  or  parties  beneficially  interested  in  an  estate 
are  in  equity  the  owners  of  it,  should  they  all  concur  in  an  application 
for  a  receiver  and  the  trustee  consent,  the  court  will  at  any  time  make 
the  order.(y)     But  the  usual  recognizances  will  not  be  dispensed  with.(?/-) 

*And  as  each  cestui  que  trust  is  entitled  to  have  the  fund  pro-  i->|co>-a-| 
perly  protected,  a  receiver  will  be  granted  at  his  instance  if  it  can  L  J 
be  shown  that  the  trustee  has  been  guilty  of  misconduct,  waste,  or  impro- 
per disposition  of  the  trust  estate, (:x-)  or  that  the  fund  is  in  danger  from 
his  being  in  insolvent  circumstances,^?/)  or  a  bankrupt,^^)  or  that  one 
trustee  has  misconducted  himself,  and  the  other  consents  to  the  order, (a) 
or  is  incapacitated  from  acting,(i)  or  that  the  executor  is  a  person  of  bad 
character,  drunken  habits,  and  great  poverty.(c) 

And  a  receiver  has  been  appointed  where  the  executrix  was  a  feme 
covert,  and  the  husband,  besides  being  in  indifferent  circumstances,  was 
out  of  the  jurisdiction,  for  in  such  a  case,  said  the  court,  if  the  executrix 
waste  the  assets  or  refuse  payment,  the  party  aggrieved  had  no  remedy, 
as  the  husband  must  be  joined  in  the  action. (ci!) 

And  a  receiver  has  been  ordered  when  four  trustees  had  been  named 
in  a  will  and  one  died,  and  another  was  abroad,  and  the  third  had 
scarcely  interfered  in  the  trust,  and  the  fourth  submitted  to  a  receiver 
by  his  answer.(e)  In  another  case  the  three  trustees  disagreed,  and  a 
receiver  was  appointed. (/)  The  order  was  taken  by  arrangement  between 
the  parties,  but  the  court  had  previously  expressed  its  opinion  that,  unless 
the  trustees  could  agree,  a  receiver  must  be  appointed.  And  the  court 
will  grant  a  receiver  at  the  instance  of  the  cestui  que  trust,  when  the 
single  trustee  is,  or  all  the  trustees  are,  out  of  the  jurisdiction. ((7) 

(m)  Wyatt  V.  Sharratt,  3  Beav.  498  ;  Score  v.  Ford,  1  Beav.  333. 

(v)  Brodie  v.  Barry,  3  Mer.  695  ;  Beaumont  v.  Beaumont,  cited  lb.  696 ;  see 
Browell  v.  Reid,  1  Hare,  435. 

(iv)  Manners  v.  Furze,  11  Beav.  30  ;  Tylee  v.  Tylee,  17  Beav.  583. 

(x)  Anon.  12  Ves.  5,  per  Sir  W.  Grant ;  and  see  Middleton  v.  Dodswell,  13  Ves. 
266;  Howard  v.  Papera,  1  Mad.  142  ;  Richards  v.  Perkins,  3  Y.  &  C.  299  ;  Evans 
V.  Coventry,  5  De  G.  M.  &  G.  911. 

(y)  Scott  V.  Becher,  4  Price,  346;  Mansfield  v.  Shaw,  3  Mad.  100;  and  see 
Anon.  12  Ves.  4;  Middleton  v.  Dodswell,  13  Ves.  266 ;  Havers  v.  Havers,  Barn.  23. 

(z)  Gladden  v.  Stoueman,  1  Mad.  143,  note  ;    Langley  v.  Hawk,  5  Mad.  46. 

(a)  Middleton  v.  Dodswell,  13  Ves.  266.      (6)  Bainbrigge  v.  Blair,  3  Beav.  421. 

(c)  Everett  v.  Prythergch,  12  Sim.  367,  3G8.       (d)  Taylor  v.  Allen,  2  Atk.  213. 

(e)  Tidd  v.  Lister,  5  Mad.  429.  (/)  Day  v.  Croft,  May  2,  1839,  M.  R. 

{g)  Noad  v.  Backhouse,  2  Y.  &  C.  Ch.  Ca.  529 ;  Smith  v.  Smith,  10  Hare,  App. 
Ixzi. 


678       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

But  the  court  is  not  in  the  habit  of  granting  a  receiver,  and 
L  "'■'•J  so  taking  the  administration  out  of  the  hands  of  the  trustees,  the 
natural  curators  of  the  estate,  upon  very  slight  grounds. (A)  Thus  it  is 
no  sufficient  cause  for  a  receiver  that  one  of  several  trustees  has  dis- 
claimed,(i)  or  is  inactive,  or  gone  abroad. {k'^  Nor  is  it  a  sufficient  cause 
that  trustees  are  in  mean  (not  insolvent)  circumstanees,(^)  or  being 
trustees  for  sale  have  let  the  purchaser  into  possession  before  they  have 
received  the  purchase-money,  for  the  court  will  not  necessarily  infer  this 
to  be  misconduct,  (m) 

When  a  receiver  is  appointed  under  the  authority  of  the  court,  he  is 
appointed  for  the  benefit  of  all  parties  interested,  and  therefore  will  not 
be  discharged  merely  on  the  application  of  the  party  at  whose  instance 
the  order  was  made.(?i) 

However,  when  a  receiver  had  been  appointed  on  the  application  of  the 
plaintiif,  the  tenant  for  life,  on  the  ground  of  the  misconduct  of  one  of 
the  trustees  and  the  incapacity  of  the  other,  and  afterwards  three  new 
trustees  were  appointed  by  the  court,  who,  on  a  motion  by  the  plaintiff 
to  discharge  the  receiver,  undertook  to  receive  the  rents  and  pass  their 
accounts  half-yearly  before  the  master,  in  the  same  way  as  a  receiver,  the 
court  said  it  was  not  proposed  to  deprive  one  party  of  the  protection  of 
the  receiver,  but  merely  to  substitute  the  trustees  in  his  place  ;  that  the 
tenant  for  life  ought  not  unnecessarily  to  be  charged  with  the  costs  of  a 
receiver ;  that  it  was  not  intended  to  put  the  owner  in  possession  ;  that 
if  any  objections  were  shown  to  the  trustees  the  application  would  be 
refused,  but  in  the  absence  of  such  objections  it  was  a  reasonable  request, 
and  the  order  for  discharging  the  receiver  was  made.(o) 

[*872]  *SECTION  VI. 

or   COSTS   OF   SUIT. 

I.  As  between  strangers  on  the  one  hand,  and  trustees  and  cesfuis  que 
trust  on  the  other. 

In  these  cases,  the  trustee  is  on  no  better  footing  than  any  ordinary 
plaintiff  or  defendant,  for  the  circumstances  of  the  trust  cannot  be  allowed 
to  affect  the  interest  of  a  third  person. (j;) 

Thus  on  a  bill  by  a  stranger  for  specific  performance  of  a  contract,  the 
vendor  or  trustee  for  sale  must,  if  he  cannot  make  a  title,  pay  the  costs 
of  the  suit  agreeably  to  the  general  rule. (5) 

So  where  trustees  or  executors  are  brought  before  the  court  as  necessary 

{h)  See  Middleton  v.  Dodswell,  13  Ves.  268  ;  Barkley  v.  Lord  Reay,  2  Hare,  306. 

(i)  Browell  v.  Reid,  1  Hare,  434 ;  but  see  Tait  v.  Jenkins,  1  Y.  &  C.  Ch.  Ca.  492. 

{k)  Browell  v.  Reid,  1  Hare,  435,  per  Sir  J.  Wigrara. 

{l)  Anon.  12  Ves.  4  ;  Howard  v.  Papera,  6  Mad.  142  ;  and  see  Hathornthwaite 
V.  Russell,  2  Atk.  126.  In  Havers  v.  Havers,  Barn.  23,  the  court  considered  mis- 
application probable. 

(m)  Browell  v.  Reid,  1  Hare,  434. 

(n)  Bainbrigge  v.  Blair,  3  Beav.  423,  per  Lord  Langdale. 

(0)  Bainbrigge  v.  Blair,  3  Beav.  421,  423,  424 ;  and  see  Poole  v.  Franks,  1  Moll, 
""v  ,  „ ,        ,         (P)  Burgess  v.  Wheate,  1  Ed.  251,  per  Lord  Northington. 

(q)  hdwards  v.  Harvey,  Coop.  40  ;  and  see  Hill  v.  Magan,  2  Moll.  460. 


PLEADING    AND    PRACTICE.  679 

parties  by  a  stranger,  if  the  trustees  or  executors  contest  the  claims  of 
the  plaintiff,  and  the  plaintiff  recover  in  the  suit,  they  are  not  entitled  to 
their  costs  ;  but  if  they  submit  the  point  to  the  court,  they  will  be  decreed 
their  costs. (r) 

If  a  plaintiff /a  ;7  in  his  suit,  but  stands  in  so  hard  a  case  that  he  ought 
not  to  imy  any  costs,  the  court  will  not  oblige  him  to  pay  the  costs  of  a 
defendant  because  he  happens  to  sustain  the  character  of  trustee. (s)  In 
a  bill  of  foreclosure  against  the  mortgagor  and  his  trustee  to  bar  dower, 
the  trustee  is  not  entitled  to  his  costs  as  against  the  mortgagor.(^) 

Where  the  bill  of  a  stranger  is  dismissed  with  costs,  a  trustee,  who  is 
a  defendant,  will  not,  as  is  usual  between  trustee  and  cestui  que  trust, 
be  ordered  his  costs  as  between  attorney  and  client,  but  only  as  between 
party  and  party. (?t) 

If  a  creditor  file  a  bill  against  an  executor  for  payment  of  a  debt,  the 
rule  which  prevails  at  law  is  not  also  the  rule  of  equity,  viz.,  that  if 
the  creditor  recover  he  shall  be  entitled  to  *his  costs  de  bonis  r^orjo-, 
testatoris,  and  if  there  be  none,  then  de  bonis  propriis  of  the  L  J 
executor ;  for  the  consideration  of  costs  in  equity  rests  entirely  in  the 
discretion  of  the  court. (i') 

As  the  law  formerly  stood,  if  the  assets  were  not  sufficient  to  cover 
both  the  debt  and  the  costs,  the  executor  was  not  decreed  to  pay  costs,(r(j) 
unless  he  had  misconducted  himself,  as  by  having  satisfied  simple  con- 
tract debts  in  preference  to  debts  upon  specialty,  (a:)  But  he  was  not 
entitled  to  retain  his  own  costs  out  of  the  assets  in  preference  to  the 
claims  of  the  plaintiff.(3/)  And  if  a  bill  had  been  filed  by  a  specialty 
creditor,  and  the  specialty  debt  had  exhausted  the  personal  assets,  the 
executor  could  not  have  claimed  to  be  reimbursed  out  of  the  real  estate 
to  the  prejudice  of  the  testator's  heir;(5;j  for  the  executor,  it  was  said, 
should  have  considered  the  risk  before  he  applied  for  the  probate. (a) 
But  now  the  practice  is  that  the  executor  shall  have  his  own  costs  in  the 
first  place,  even  as  against  the  plaintiff,  for  the  court  will  not  take  the 
fund  out  of  his  hands  until  his  costs  are  paid.(Z*) 

II.  Of  costs  as  between  trustees  and  cestuis  que  trust,  inter  se. 

The  general  rule  is  that  a  trustee  shall  have  his  costs  of  suit  awarded 
him  at  the  hearing  either  out  of  the  trust  estate,  or  to  be  paid  by 
his  cestui  que  trust.(c'^     And  if  there  be  a  fund  under  the  control  of  the 

(r)  Rashley  v.  Masters,  1  Ves.  jun.  201,  see  205. 

(s)  Brodie  v.  St.  Paul,  lb.  326,  see  334.       {(}  Horrocks  v.  Ledsam,  2  Coll.  208. 

(u)  Mohun  V.  Mohun,  1  Sw.  201 ;  Saunders  v.  Saunders,  5  Weekly  Rep.  479. 

(v)  Twisleton  v.  Thelwel,  Hard.  165  ;  Uvedale  v.  Uvedale,  3  Atk.  119;  but  see 
Davy  T.  Seys,  Mos.  204. 

(w)  Twisleton  v.  Thelwel,  ubi  supra ;  Morony  v.  Vincent,  2  Moll.  461. 

(x)  Jefferies  v.  Harrison,  1  Atk.  468  ;  and  see  Bennett  v.  Attkins,  1  Y.  &  C.  247  ; 
Wilkins  x.  Hunt,  2  Atk.  151. 

((/)  Humphrey  v.  Morse,  2  Atk.  408  ;  Sandys  v.  Watson,  2  Atk.  80 ;  and  see 
Adair  v.  Shaw,  1  Sch.  &  Lef.  280. 

(z)  Uvedale  v.  Uvedale,  3  Atk.  119  ;  and  see  Nash  v.  Dillon,  1  Moll.  237. 

(a)  See  Uvedale  v.  Uvedale,  3  Atk   119  ;  Humphrey  v.  Morse,  2  Atk.  408. 

(b)  Bennet  v.  Going,  1  Moll.  529  ;  Tipping  v.  Power,  1  Hare,  405  ;  Ottley  v. 
Gilbv,  8  Beav.  603  ;  Tanner  v.  Dancey,  9  Beav.  339. 

(c)  1  Eq.  Ca.  Ab.  125,  note  (a)  ;  Hall  v.  Hallet,  1  Cox,  141,  per  Lord  Thurlow ; 
Attorney-General  v.  City  of  London,  3  B.  C.  C.  171  ;  Norris  v.  Norris,  1  Cox,  183  ; 


680 


LETVIN    ON    THE    LAW    OF    TKUSTS,    ETC. 


f 


court  (but  in  t^eneral  not  otherwise,(c7))  he  will  have  his  costs  as 
[*874]  ^jet^egn  solicitor  and  client.(e)  If  it  appear  upon  the  pleadings 
or  the  court  be  otherwise  satisfied  that  the  trustee  has  sustained  charges 
and  expenses  beyond  the  costs  of  suit,  the  court  will  at  the  same  time 
order  him  his  costs,  charges,  and  expenses  properly  incurred.  If  the 
trustee  be  a  solicitor,  the  court  will  not  declare  that  the  trustee  shall 
have  his  costs  out  of  pocket  only,  but  will  give  him  his  costs  as  between 
solicitor  and  client  in  the  usual  way,  and  leave  it  to  the  taxing  officer  to 
deal  with  the  effect  of  the  order.(/) 

Even  where  the  trustee  did  not  appear  at  the  hearing,  and  a  decree 
nid  was  made  against  him,  and  the  trustee  set  down  the  cause  again,  and 
prayed  to  have  his  costs  of  the  suit  upon  his  paying  the  costs  of  the  day. 
Lord  Kenyon  said,  "The  payment  of  the  costs  of  the  day  makes  the 
trustee  rectum  in  curia  ;  and  as  he  would  most  unquestionably  have  been 
entitled  to  his  costs  if  he  had  appeared  at  the  original  hearing,  so  he  now 
stands  in  the  same  situation,  and  is  therefore  entitled  to  his  costs."(^) 

But  if  the  decree  has  been  paused,  a  trustee  who  has  omitted  to  ask 
for  his  costs  at  the  hearing  cannot  have  the  cause  re-heard  upon  the 
subject  of  costs  only,  and  cannot  obtain  an  order  for  payment  of  his  costs 
upon  presenting  a  petition. (/«) 

If  a  person  named  as  trustee  be  made  defendant  to  a  suit,  and  by  his 
answer  disclaim  the  trust,  the  bill  will  be  dismissed  as  against  him  with 
costs -M)  but  not  with  costs  as  hctwecn  solicitor  and  client ;  for,  having 
refused  to  accept  the  office,  he  stands  in  the  light  of  any  ordinary  defend- 
ant -Alx)  and  if  his  answer  be  unnecessarily  long,  he  will  only  be  allowed 
the  reasonable  costs  of  a  disclaimer. (^) 

r*S'-p;n  *If  a  person  be  a  trustee  of  a  deed  void  as  against  creditors, 
L  -I  or  on  other  grounds,  he  is  entitled  to  his  costs  if  the  plaintiff  by 
praying  a  conveyance  by  the  trustee  elect  to  treat  him  in  that  charac- 
ter.(m)  But  if  the  deed  contain  a  false  recital,  for  the  purpose  of  mis- 
leading bona  fde  creditors,  the  trustee,  on  a  bill  to  set  it  aside,  will  not 
have  his  costs. (n) 

2.  If  any  particular  instance  of  misconduct,  or  a  general  dereliction 
of  duty  in  the  trustee, (o)  or  even  his  mere  caprice  and  obstinacy, (p)  be 

Sammes  v.  Rickman,  2  Ves.  jun.  38,  per  Lord  Chief  Baron  Eyre;  Rashley  v.  Mas- 
ters, 1  Ves.  jun.  201  ;  Roche  v.  Hart,  1 1  Ves.  58  ;  Maplett  v.  Pocock,  Rep.  t. 
Finch,  136.     Landen  v.  Green,  Barn.  389  ;  Taylor  v.  Glanville,  3  Mad.  176,  &c. 

[d)  Edenborough  v.  Archbishop  of  Canterbury,  2  Russ.  112  ;  but  see  Attorney- 
General  V.  Cuming,  2  Y.  &  C.  Ch.  Ca.  155. 

{e)  Mohun  v.  Mo'hun,  1  Sw.  201,  per  Sir  T.  Plumer  ;  Moore  v.  Frowd,  3  M.  &  C. 
49,  per  Lord  Cottenhani. 

(/)  York  V.  Brown,  1  Coll.  260.  {g)  Norris  v.  Norris,  1  Cox,  183. 

[h)  Colraan  v.  Sarell,  2  Cox,  206.  (j)  Hickson  v.  Fitzgerald,  1  Moll.  14. 

(k)  Norway  v.  Norway.  2  M.  &  K.  278,  overruling  Sherratt  v.  Bentley,  1  R.  & 
M.  655. 

{I)  Martin  v.  Persse,  1  Moll.  146. 

(w)  Snow  V.  Hole,  V.  C.  of  England,  March  8,  1845. 

(■«)  Turquand  v.  Knight,  14  Sim.  643. 

(o)  Attorney-General  v.  Robert,  Rep.  t.  Finch,  259  ;  Earl  Powlet  v.  Herbert,  1 
Ves.  jun.  297  ;  Caflrey  v.  Darby,  6  Ves.  4S8  ;  Littlehales  v.  Gayscoyne,  3  B.  C.  C. 
73;  Ashburnbam  v.  Thompson,  13  Ves.  402;  Hide  v.  Haywood',  2  Atk.  126; 
Adams  v.  Clifton,  1  Russ.  297  ;  Mosley  v.  Ward.  11  Ves.  581 ;  Piety  v.  Stace,  4 

{p)  See  next  page,  for  note  (/>). 


PLEADING    AND    PRACTICE.  681 

the  iiniuediate  cause  why  the  suit  was  instituted,  the  trustee,  on  the 
charge  beiug  substantiated  against  him,  must  pay  the  costs  of  the  pro- 
ceedings his  own  improper  behaviour  has  occasioned.  And  where  two 
executors  had  kept  hirge  balances  in  their  hands  for  a  great  length  of 
time,  and  one  of  them  had  become  insolvent,  the  court  decreed  each  of 
them  to  be  liable  for  the  costs  of  the  u-hole  suit.(2') 

But  where  a  bill  was  filed  charging  the  trustee  with  a  breach  of  trust 
both  as  to  realty  and  personalty,  and  the  charge  failed  as  to  the  former 
but  succeeded  as  to  the  latter,  the  court  said,  it  was  scarcely  possible  to 
suppose  that  the  trustee  should  be  permitted  to  have  his  costs,  but  it 
would  be  injustice  to  make  him  pay  the  whole  costs,  as  one  part  of  the 
bill  had  failed. (r) 

^Trustees  for  sale  had  purchased  in  the  name  of  a  trustee  at  rxcOTp-i 
an  undervalue,  but  without  any  imjnitation  of  fraud,  and  hy  ^  ^  -I 
auction.  As  to  so  much  of  the  suit  as  related  to  calling  upon  the  trus- 
tees to  submit  to  a  resale,  and  the  directions  consequential  thereon,  the 
court  gave  relief  against  the  trustees  uuth  costs  ;  but  as  to  the  accounts 
that  must  have  been  taken  had  the  sale  been  unimpeachable,  the  trus- 
tees were  allowed  their  costs,  (s) 

If  the  suit  was  occasioned  by  the  mistake,  or  some  slight  neglect  of 
the  trustee,  the  court  will  content  itself  with  not  giving  him  costs, (^)  or 
will  punish  him  with  j:)a^me?i^  of  part  of  the  costs  only,(«)  or  will  even 
give  him  his  costs. (v) 

And  where  a  suit  was  mainly  occasioned  by  the  breach  of  trust  of  a 
trustee,  though  he  was  deci-eed  to  pay  the  costs  up  to  the  hearing,  yet  he 
was  held  entitled  to  his  subsequent  costs  relating  to  the  ordinary  taking 
of  the  accounts. (?o) 

3.  If  the  bill  filed  did  not  originate  from  any  necessity  of  inquiring 
into  the  conduct  of  the  trustee,  but  in  the  course  of  the  proceedings 
instituted  upon  other  grounds,  it  appears  the  trustee  has  in  some  parti- 
cular instance  been  guilty  of  a  breach  of  trust,  the  court  will  not  award 
against  the  trustee  the  costs  of  the  ichole  cause,  but  only  of  so  much  of 

Ves.  620  ;  Seers  v.  Hind.  1  Ves.  jun.  294  ;  Fell  v.  Lutwidge,  Barn.  319,  see  322; 
Brown  v.  How,  Barn.  354,  see  358  ;  Sheppard  v.  Smith,  2  B.  P.  C.  372  ;  Haber- 
dashers' Company  v.  Attorney-General,  2  B.  P.  C.  370;  Fr.anklin  v.  Frith,  3  B.  C. 
C.  433  ;  Whistler  V.  Newman,  4  Ves.  129;  Stacpoole  v.  Stacpoole,  4  Dow.  209. 
Crackett  v.  Bethune,  1  J.  &  W.  586  ;  Baker  v.  Carter,  1  Y.  &  C.  252,  per  Lord 
Abinger,  C.  B. ;  Hide  v.  Haywood,  2  Atk.  120  ;  Wilson  v.  Wilson,  2  Keen,  249  ; 
Attorney-General  v.  Wilson,  1  Cr.  &  Phil.  1  ;  Lyse  v.  Kingdon,  1  Coll.  184. 

(j9)  Taylor  v.  Glanville,  3  Mad.  178,  per  Sir  J.  Leach  ;  Jones  v.  Lewis,  I  Cox, 
199  ;  Earl  of  Scarborough  v.  Parker,  1  Ves.  jun.  267  ;  Kirby  v.  Mash,  3  Y.  &  C. 
295  ;  Thorby  v.  Yeats,  1  Y.  &  C.  Ch.  Ca.  438 ;  Hampshire  v.  Bradley,  2  Coll.  34  ; 
Penfold  V.  Bouch,  4  Hare,  271  ;  and  see  Burrows  v.  Greenwood,  4  Y.  &  C.  251. 

(§')  Littlehales  v.  Gascoyne,  3  B.  C.  C.  73. 

{r)  Pocock  V.  Reddington,  5  Ves.  800.      (s)  Sanderson  v.  Walker,  13  Yes.  601. 

(<)  O'Callagan  v.  Cooper,  5  Ves.  117  ;  Mousley  v.  Carr,  4  Beav.  49  ;  Attorney- 
General  V.  Drapers'  Company,  lb.  71  ;  Devey  v.  Thornton,  9  Hare,  222. 

(m)  East  V.  Ryal,  2  P.  W.  284. 

\v)  Taylor  v.'Tabrum,  6  Sim.  281  ;  Flanagan  v.  Nolan,  1  Moll.  84  ;  Travers  v. 
Townsend,  lb.  496  ;  Attorney-General  v.  Caius  College,  2  Keen,  150;  Bennett  v. 
Atkins,  1  Y.  &  C.  247  ;  Fitzgerald  v.  O'Flaherty,  1  Moll.  347  ;  Attorney-General 
V.  Drummond,  2  Conn.  &  Laws.  98  ;  Royds  v.  Royds,  14  Beav.  54. 

{w)  Hewett  v.  Foster,  7  Beav.  348. 

April,  1858. — i4 


682 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


1 


it  as  connects  itself  with  his  misconduct,  and  as  to  the  rest  of  the  suit 
will  allow  him  his  costs. (i-) 

An  executor,  instead  of  accumulating  a  fund  as  directed  by  the  will, 
had  improperly  kept  the  balance  in  his  hands ;  but,  as  the  amount  of 
costs  had  in  great  measure  been  occasioned  by  the  inquiry  what  rule  the 
court  ought  to  adopt  with  respect  to  *the  computation  of  interest, 
C*^'^]  it  was  thought  hard  under  the  circumstances  to  fix  the  executor 
with  payment  of  costs  even  relatively  to  the  breach  of  trust ;  and  there- 
fore the  court  gave  no  costs. (.y) 

As  to  one  part  of  the  suit,  the  trustee  ought  from  his  misconduct  to  have 
paid  the  costs,  and,  as  to  another,  to  have  beeen  alloiccd  his  costs ;  and 
the  court  by  a  kind  of  compromise,  left  each  party  to  pay  his  own 
costs. (z) 

Where  the  breach  of  trust  is  trivial,  the  court  may  overlook  it  alto- 
gether, and  give  the  trustee  his  whole  costs. (a) 

4.  If  a  trustee  have  a  private  interest  of  his  own  separate  and  inde- 
pendent from  the  trust,  and  oblige  the  cestui  que  trust,  to  come  into  a 
court  of  equity  merely  to  have  some  point  relating  to  the  trustee's  pri- 
vate interest  determined  at  the  expense  of  the  trust,  that  is  such  a  vexa- 
tious proceeding  in  the  trustee,  that,  for  example's  sake,  he  will  bo 
decreed  to  pay  the  costs  of  the  whole  suit.(?^) 

5.  If  on  a  bill  for  an  account  the  defendant  says  in  his  answer  he 
believes  the  plaintiff  is  considerably  indebted  to  him,  and  after  a  long 
investigation  it  proves  the  defendant  i.s  considerably  indebted  to  the 
plaiutiflP,  the  trustee,  thus  daring  the  plaiTitifF  to  his  account,  will  be 
decreed  to  pay  the  costs. (c)  And  if  the  balance  be  in  favour  of  the 
trustee,  but  far  below  what  he  had  stated  in  his  answer,  he  will  not  be 
entitled  to  have  his  costs, (fH  or  at  least  not  the  costs  of  the  account  H  Mi 
itself,  (e) 

A  trustee  will  be  fixed  with  costs  if  he  wilfully  misstate  the  accounts, (/) 
or  if,  by  any  chicanery  in  his  answer,  he  keep  the  cestui  que  trust  from 
a  true  knowledge  of  the  accounts,(^)  or  even  if  he  have  kept  the  accounts 
r*Q7Sl  ^"  ^  ^^^y  confused  *manncr.(7()  And  an  executor  will  be  liable 
L  -I  to  pay  costs  if  he  deny  assets,  and  the  contrary  be  established 
against  him. (A 

Where  a  corporation  filling  the  character  of  trustees  for  a  grammar 
school  by  their  answer  pleaded  ignorance  of  the  claims  of  the  charity,  and 
the  information  was  afterwards  elicited  from  the  documents  scheduled  to 
their  answer,  as  the  court  inferred  from  such  conduct  a  disposition  to 

(x-)  Tebbs  v.  Carpenter,  1  Mad.  200,  see  308  ;  Newton  v.  Bennet,  1  B.  C.  C.  359  ; 
Pride  v.  Fooks,  2  Bear.  430;   Heighington  v.  Grant,  1  Phil.  600. 

(?/)  Raphael  v.  Boehm,  13  Yes.  592.  (z)  Newton  v.  Bennet,  1  B.  C.  C.  3G2. 

{a)  Fitzgerald  v.  Pringle,  2  Moll.  534;  Bailey  v.  Gould,  4  Y.  &  C.  221;  see 
225  ;  Knott  v.  Cottee,  IG  Bear.  77  ;  Cotton  v.  Clark,  16  Beav.  134. 

{h)  Henley  v.  Philips,  2  Atk.  48.  (c)  Parrot  v.  Treby,  Pr.  Ch.  254. 

(d)  Attorney-General  v.  Brewers'  Company,  1  P.  W.  376. 

(c)  Fozierv.  Andrews,  2  Jones  &  Lat.  199. 

(/)  Shepi.ard  v.  Smith,  2  B.  P.  C.  372  ;  and  see  Flanagan  v.  Nolan,  1  Moll.  86. 

{g)  Avery  v.  Osborne,  Barn,  349  ;  Reech  v.  Kennegal.  1  Yes.  123. 

{h)  Norbury  t.  Calbeck,  2  Moll.  461.     (/)  Sandys  v.  '\Yatson,  2  Atk.  80. 


1'^ 


I 


PLEADING    AND    PRACTICE.  683 

obstruct  and  defeat  the  ends  of  justice,  tlie  corporation  was  decreed  to 
pay  the  costs  of  the  suit.(/.-) 

And  a  corporation  similarly  circumstanced  was  punished  in  the  same 
manner  where,  the  court  having  directed  the  production  of  certain  docu- 
ments, it  was  afterwards  discovered  that  a  very  material  one  had  been 
suppressed.  (?) 

6.  The  costs  of  the  suit  will  be  cast  upon  the  trustee,  if,  in  his  answer, 
he  set  up  a  title  of  his  own,  and  make  an  ill  defence  ;(m)  and  he  will 
not  be  allowed  to  have  his  costs  if  he  set  up  any  trust  different  from 
what  it  actually  is.(?i) 

An  executor  sued  by  the  next  of  kin  had  put  the  plaintiffs  to  the 
proof  of  their  relationship,  and  the  fact  not  admitting  a  doubt  the  exe- 
cutor was  fixed  with  the  costs  of  the  inquiry. (o) 

7.  It  was  laid  down  as  a  rule  by  Lord  Thurlow,  that  "  where  he  was 
obliged  to  give  interest  against  executors  as  a  remedy  for  a  breach  of 
trust,  costs  against  them  must  follow  of  course  ;"(jj)  but  Sir  W.  Grant 
said,  "  that  was  a  proposition  to  which  he  was  not  quite  prepared  to 
accede,  as  there  might  be  many  cases  in  which  executors  must  pay 
interest,  which  would  not  be  cases  for  costs  ',"{q)  and  the  existence  of 
any  *such  rule  has  since  been  denied  •,[r)  and  where  the  trustee  pgyg-i 
has  not  misconducted  himself,  but  on  a  cestui' s  que  trust  bill  L  J 
against  him  for  an  account  has  been  decreed  to  pay  costs,  he  has  been 
allowed  his  general  costs  of  suit,  excluding  the  costs  incurred  in  taking 
the  account  in  which  the  trustee  failed.(s)  The  meaning  of  Lord  Thur- 
low probably  was,  that  where  the  suit  was  occasioned  by  the  miscon- 
duct of  the  trustee,  and  the  charge  against  him  was  shown  to  be  well 
founded  by  the  court's  fixing  him  with  interest,  the  costs  of  the  suit  in 
that  case  would  be  consequential  upon  the  relief. (<) 

{k)  Attorney-General  v.  East  Retford,  2  M.  &  K.  35. 

(/)  Borough  of  Hertford  \.  Poor  of  same  Borough,  2  B.  P.  C.  377. 

(m)  Loyd  V.  Spillet,  3  P.  W.  344;  Bayly  v.  Powell,  Pr.  Ch.  92  ;  Willis  v.  His- 
cox,  4  M.  &  C.  197  ;  Attorney-General  v.  Drapers'  Company,  4  Beav.  67  ;  Attor- 
ney-General V.  Christ's  Hospital,  lb.  73  ;  Irwin  v.  Rogers,  12  Ir.'Eq.  Rep.  159. 

{n)  Ball  V.  Montgomery,  2  Ves.  jun.  191,  see  199. 

(o)  Lowson  V.  Copeland,  2  B.  C.  G.  156. 

[p)  Seers  v.  Hind,  1  Ves.  jun.  294  ;  and  see  Franklin  v.  Frith,  3  B.  C.  C.  433 ; 
Mosley  v.  Ward,  11  Ves.  581. 

{q)  Ashburnham  v.  Thompson,  13  Ves.  404. 

(r)  Tebbs  v.  Carpenter,  1  Mad.  308  ;  Woodhead  v.  Marriott,  C.  P.  Cooper's  Rep. 
1837-38,  62  ;  Holgate  v.  Haworth,  17  Beav.  259. 

(•s)  Fozier  v.  Andrews,  2  Jones  &  Lat.  199.  , 

{t)  See  Mosley  v.  Ward,  11  Ves.  582. 


TEUSTEE    ACT,    1850. 


13°  &  14°  Victoria,  Cap.  60. 

An  Act  to  consolidate  and  amend  the  Laics  relating  to  the  Conveyance 
and  Transfer  of  Real  and  Personal  Property  vested  in  Mortgagees 
and  Trustees,     bth  August,  1850. 

Whereas  an  act  was  passed  in  the  first  year  of  the  reign  of  his  hite 
majesty  King  William  the  Fourth,  intituled  "  An  act  for  amending  the 
Laws  respecting  Conveyances  and  Transfers  of  Estates  and  Funds  vested 
in  Trustees  and  Mortgagees,  and  for  enabling  courts  of  equity  to  give 
effect  to  their  Decrees  and  Orders  in  certain  cases  :"  And  whereas  an 
act  was  passed  in  the  fifth  year  of  the  reign  of  his  late  majesty  King 
William  the  Fourth,  intituled  "  An  act  for  the  Amendment  of  the  Law 
relative  to  the  Escheat  and  Forfeiture  of  Real  and  Personal  Property 
holden  in  trust ;"  And  whereas  an  act  was  passed  in  the  second  year  of 
the  reign  of  her  present  majesty,  intituled  "  An  Act  to  remove  Doubts  res- 
pecting Conveyances  of  Estates  vested  in  Heirs  and  Devisees  of  Mortga- 
gees :"  And  whereas  it  is  expedient  that  the  provisions  of  the  said  acts 
should  be  consolidated  and  enlarged  :  Be  it  therefore  enacted  by  the  queen's 
most  excellent  majesty,  by  and  with  the  advice  and  consent  of  the  lords 
spiritual  and  temporal,  and  commons,  in  this  present  parliament  assem- 
bled, and  by  the  authority  of  the  same,  that  all  proceedings  under  the 
said  acts  or  any  of  them  commenced  before  the  passing  of  this  act  may 
be  proceeded  with  under  the  said  recited  acts,  or  according  to  the  provi- 
sions of  this  act,  as  shall  be  thought  expedient,  and,  subject  as  aforesaid, 
that  the  said  recited  acts  shall  be  and  the  same  are  hereby  repealed  : 
Provided  Always,  that  the  several  acts  repealed  by  the  said  recited 
acts  shall  not  be  revived,  and  that  such  repeal  shall  only  be  on  and  after 
this  act  coming  into  operation. 

r*8Sll  ^^^'  ''^^^  whereas  it  is  expedient  to  define  the  meaning  iu 
L  -I  which  certain  words  are  hereafter  used  :  It  is  declared  that  the 
several  words  hereinafter  named  are  herein  used  and  applied  in  the 
manner  following  respectively ;  (that  is  to  say,) 

The  word  '^  lands"  shall  extend  to  and  include  manors,  messuages, 
tenements,  and  hereditaments,  corporeal  and  incorporeal,  of  every 
tenureordescription,  whatever  may  be  the  estate  or  interest  therein  : 
The  word  "stock"  shall  mean  any  fund,  annuity  or  security  transfera- 
ble in  books  kept  by  any  company  or  society  established,  or  to  be 


TRUSTEE    ACT,    185  0.  685 

establislied,  or  trausferable  by  deed  alone,  or  by  deed  accompanied 
by  other  formalities,  and  any  share  or  interest  therein  :(a\ 

The  word  "  seised"  shall  be  applicable  to  any  vested  estate  for  life  or 
of  a  greater  description,  and  shall  extend  to  estates  at  law  and  in 
equity,^^)  in  possession  or  in  futurity,  in  any  lands : 

The  word  "possessed"  shall  be  applicable  to  any  vested  estate  less 
than  a  life  estate,  at  law  or  in  equity,  in  possession  or  in  expectancy, 
in  any  lands: 

The  words  "  contingent  right,"  as  applied  to  lands,  shall  mean  a  con- 
tingent or  executory  interest,  a  possibility  coupled  with  an  interest, 
whether  the  object  of  the  gift  or  limitation  of  such  interest  or 
possibility  be  or  be  not  ascertained,  also  a  right  of  entry  whether 
immediate  or  future,  and  whether  vested  or  contingent : 

The  words  "  convey"  and  "  conveyance,"  applied  to  any  person,  shall 
mean  the  execution  by  such  person  of  every  necessary  or  suitable 
assurance  for  conveying  or  disposing  to  another  lands  whereof  such 
person  is  seised  or  entitled  to  a  contingent  right,  either  for  the  whole 
estate  of  the  person  conveying  or  disposing,  or  for  any  less  estate, 
together  with  the  performance  of  all  formalities  required  by  law  to 
the  validity  of  such  conveyance,  including  the  acts  to  be  performed 
by  married  women  and  tenants  in  tail  in  accordance  with  the  provi- 
sions of  an  act  passed  in  the  fourth  year  of  the  reign  of  his  late 
majesty  King  William  the  Fourth,  intituled  An  Act  for  the  Aboli- 
tion of  Fines  and  ^Hecovertes,  and  the  substitution  of  more  r-^QQi)-\ 
simple  modes  of  Assurance, {c^  and  including  also  surrenders  L  "'J 
and  other  acts  which  a  tenant  of  customary  or  copyhold  lands  can 
himself  perform  preparatory  to  or  in  aid  of  a  complete  assurance  of 
such  customary  or  copyhold  lands  :(rA 

The  words  "assign"  and  "assignment"  shall  mean  the  execution  and 
performance  by  a  person  of  every  necessary  or  suitable  deed  or  act 
for  assigning,  surrendering,  or  otherwise  transferring  lands  of  which 
such  person  is  possessed,  either  for  the  whole  estate  of  the  person 
so  possessed  or  for  any  less  estate  : 

The  word  "  transfer"  shall  mean  the  execution  and  performance  of 
every  deed  and  act  by  which  a  person  entitled  to  stock  can  transfer 
such  stock  from  himself  to  another  : 

The  words  "Lord  Chancellor"  shall  mean  as  well  the  Lord  Chancellor 
of  Great  Britain  as  any  Lord  Keeper  or  Lords  Commissioners  of 
the  Great  Seal  for  the  time  being  : 

The  words  "Lord  Chancellor  of  Ireland"  shall  mean  as  well  the  Lord 
Chancellor  of  L'eland  as  any  Keeper  or  Lords  Commissioners  of  the 
Great  Seal  of  Ireland  for  the  time  being  : 

(«)  See  Re  Angelo,  5  De  Gex  &  Sm.  278. 

(b)  In  suits  where  all  parties  beneficially  interested  are  before  the  court,  it  is 
sufficient  for  the  purchaser  to  take  a  conveyance  of  the  legal  estate,  for  the  equi- 
ties of  the  parties  are  bound  by  the  order  for  sale  ;  Re  Williams's  Estate,  5  De 
Gex  &  Sni.  515.  And  see  the  analogous  case  under  the  prior  act,  Goddard  v. 
Macaulay,  6  Ir.  Eq.  Rep.  221. 

(c)  See  Powell  v.  Matthews,  1  Jur.  N.  S.  973. 

(d)  See  Rowley  v.  Adams,  14  Beav.  130. 


(386       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

The  word  "trust"  shall  not  mean  the  duties  incident  to  an  estate 
conveyed  by  way  of  mortgage  ;(e)  but,  with  this  exception  the  words 
''trust"  and  "trustee"  shall  extend  to  and  include  implied  and 
constructive  trusts,(/)  and  shall  extend  to  and  include  cases  where 
the  trustee  has  some  beneficial  interest  or  estate  in  the  subject  of 
the  trust,  and  shall  extend  to  and  include  the  duties  incident  to  the 
office  of  personal  representative  of  a  deceased  person  : 

The  word  "  lunatic"  shall  mean  any  person  who  shall  have  been  found 
to  be  a  lunatic  upon  a  commission  of  inquiry  in  the  nature  of  a 
writ  de  lunatico  inquirendo  : 

The  expression  "  person  of  unsound  mind"  shall  mean  any  person  not 
an  infant,  who,  not  having  been  found  to  be  a  lunatic,  shall 
L  006^  ^-^^  incapable  from  infirmity  of  mind((7)  to  manage  his  own 

affairs : 

The  word  "  devisee"  shall,  in  addition  to  its  ordinary  signification, 
mean  the  heir  of  a  devisee  and  the  devisee  of  an  heir,  and  generally 
any  person  claiming  an  interest  in  the  lands  of  a  deceased  person, 
not  as  heir  of  such  deceased  person,  but  by  a  title  dependent 
solely  upon  the  operation  of  the  laws  concerning  devise  and 
descent : 

The  word  "mortgage"  shall  be  applicable  to  every  estate,  interest,  or 
property  in  lands  or  personal  estate  which  would  in  a  court  of  equity 
be  deemed  merely  a  security  for  money ; 

The  word  "  person,"  used  and  referred  to  in  the  masculine  gender, 
shall  include  a  female  as  well  as  a  male,  and  shall  include  a  body 
corporate  : 

And  generally,  unless  the  contrary  shall  appear  from  the  context, 
every  word  importing  the  singular  number  only  shall  extend  to 
several  persons  or  things,  and  every  word  importing  the  plural  num- 
ber shall  apply  to  one  person  or  thing  and  every  word  importing 
the  masculine  gender  only  shall  extend  to  a  female. 

III.  And  be  it  enacted,  that  when  any  lunatic  or  person  of  unsound 
mind  shall  be  seised  or  possessed  of  any  lands  upon  any  trust  or  by  way 
of  mortgage,  it  shall  be  lawful  for  the  lord  chancellor,(/t)  intrusted  by 

(e)  As  to  the  question  upon  the  1  W.  4,  c.  60,  whether  the  word  "  trust''  in- 
cluded a  "  mortgage"  see  note  (x),  p.  836,  supra. 

{/)  A  vendor,  after  a  contract,  has  been  held,  to  be  a  trustee  of  shares  in  a 
joint-stock  bank  for  the  purchaser;  Re  Angelo,  5  De  Gex  &  Sm.  278.  But  in 
cases  of  real  estate,  if  not  generally,  at  least  where  the  alleged  trustee  may  possi- 
bly dispute  the  trust,  the  constructive  trust  must  first  have  been  declared  by  the 
decree  of  the  court;  so  that  the  infant  heir  of  a  vendor  who  has  died  intestate 
having  contracted  to  sell  real  estate  in  his  life  time,  is  not  a  constructive  trustee 
for  the  purchaser  unless  so  declared  by  decree.  Re  Carpenter,  1  Kay,  418  ;  Re 
Burt,  9  Hare,  289.  Re  Wise,  5  De  Gex  &  Sm.  415,  is  distinguishable;  and  see 
Propert's  Purchase,  22  L.  J.  Ch.  948. 

{g)  See  cases  under  the  1  W.  4,  c.  60,  Re  Wakeford,  1  Jones  &  Lat.  2  ;  Re 
Jones,  6  Jur.  545  ;  Re  Walker,  1  Cr.  &  Ph.  147. 

{h)  It  was  doubted  whether  the  lords  justices,  though  they  are  in  fact  intrusted 
under  the  queen's  sign  manual  with  the  care,  &c.,  of  lunatics,  had  power  to  exer- 
cise the  jurisdiction  given  by  the  act  to  the  lord  chancellor  intrusted,  &c.  Re 
Waugh's  Trust,  2  De  Gex,  Mac.  &  Gor.  279:  Re  Pattinson,  21  Law  J.  Ch.  280. 
See  now  the  15  &  16  Vict.  c.  87,  s.  15,  removing  the  doubt,  and  the  11th  section 
of  the  Extension  Act. 


TRUSTEE    ACT,    1850.  687 

virtue  of  the  queen's  sign  manual  with  the  care  of  the  persons  and  es- 
tates of  lunatics,  to  make  an  order  that  such  lands  be  vested  in  such 
person  or  persons  in  such  manner  and  for  such  estate  as  he  shall  direct; 
and  the  order  shall  have  the  same  effect  as  if  the  trustee  or  mortgagee 
had  been  sane,  and  had  duly  executed  a  conveyance  or  assignment  of 
the  lands  in  the  same  manner  for  the  same  estate. (V) 

*IV.  And  be  it  enacted,  that  when  any  lunatic  or  person  of  r*gg^-i 
unsound  mind  shall  be  entitled  to  any  contingent  right  in  any  L  "-"-  J 
lands  upon  any  trust  or  by  way  of  mortgage,  it  shall  be  lawful  for  the 
lord  chancellor,  intrusted  as  aforesaid,  to  make  an  order  wholly  releasing 
such  lands  from  such  contingent  right,  or  disposing  of  the  same  to  such 
person  or  persons  as  the  said  lord  chancellor  shall  direct;  and  the  order 
shall  have  the  same  effect  as  if  the  trustee  or  mortgagee  had  been  sane, 
and  had  duly  executed  a  deed  so  releasing  or  disposing  of  the  contin- 
gent right. 

V.  And  be  it  enacted,  that  when  any  lunatic  or  person  of  unsound 
mind  shall  be  solely  entitled  to  any  stock  or  to  any  chose  in  action  upon 
any  trust  or  by  way  of  mortgage,  it  shall  be  lawful  for  the  lord  chancel- 
lor, intrusted  as  aforesaid,  to  make  an  order  vesting  in  any  person  or  per- 
sons the  right  to  transfer  such  stock,  or  to  receive  the  dividends  or 
income  thereof,  or  to  sue  for  and  recover  such  chose  in  action,  or  any 
interest  in  respect  thereof;  and  when  any  person  or  persons  shall  be  en- 
titled jointly  with  any  lunatic  or  person  of  unsound  mind  to  any  stock 
or  chose  in  action  upon  any  trust  or  by  way  of  mortgage,  it  shall  be 
lawful  for  the  said  lord  chancellor  to  make  an  order  vesting  the  right  to 
transfer  such  stock,  or  to  receive  the  dividends  or  income  thereof,  or  to 
sue  for  and  recover  such  chose  in  action,  or  any  interest  in  respect  thereof, 
either  in  such  person  or  persons  so  jointly  entitled  as  aforesaid,  or  in  such 
last-mentioned  person  or  persons  together  with  any  other  person  or  per- 
sons the  said  lord  chancellor  may  appoint. 

VI.  And  be  it  enacted,  that  when  any  stock  shall  be  standing  in  the 
name  of  any  deceased  person  whose  personal  representative  is  a  lunatic 
or  person  of  unsound  mind,  or  when  any  chose  in  action  shall  be  vested 
in  any  lunatic  or  person  of  unsound  mind  as  the  personal  representative 
of  a  deceased  person,  it  shall  be  lawful  for  the  lord  chancellor,  intrusted 
as  aforesaid,  to  make  an  order  vesting  the  right  to  transfer  such  stock, 
or  to  receive  the  dividends  or  income  thereof,  or  to  sue  for  and  recover 
such  chose  in  action  or  any  interest  in  respect  thereof,  in  any  person  or 
persons  he  may  appoint. 

VII.  And  be  it  enacted,  that  where  any  infant  shall  be  seised  or  pos- 
sessed of  any  lauds  upon  any  trust,  or  by  way  of  mortgage,  it  shall  be 

(i)  Under  this  section  (and  it  is  conceived  that  the  same  principle  applies  to 
the  4th  and  5th  sections,)  if  the  lunatic  be  a  trustee,  the  trust  estate  or  the  cestui 
que  trust  must  bear  the  costs  of  the  proceedings  under  the  act.  If  he  be  a  mort- 
gagee,  the  costs  -n-ill,  as  a  general  rule  (though  this  result  is  contrary  to  principle,) 
come  out  of  the  lunatic's  estate.  Re  Wheeler,  1  De  Gex,  Mac.  &  Gor.  436.  But 
where,  on  the  face  of  the  mortgage  deed,  the  lunatic  mortgagee  is  a  trustee  for  a 
third  party,  the  costs  must  fall  on  the  mortgagor.  Re  Lewes,  1  Mac.  &  Gor.  23. 
Seeus,  if  the  mortgagor  have  no  notice  of  the  fict  that  the  lunatic  is  a  trustee.  Re 
Townsend,  1  Mac.  &  Gor.  686.  And  see  under  1  W.  4,  c.  60,  Re  Townsend,  2 
Phil.  348,  and  cases  there  cited. 


Q^S  LEAVIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

lawful  for  the  Court  of  Chancery  to  make  an  order  vesting  such  lands  in 
such  person  or  persons  in  such  manner  and  for  such  estate  as  the  said 
court  shall  direct  ;(A-)  and  the  order  shall  have  the  same  *effect 
[=^■885]  ^g  j^  ^i^g  infant  trustee  or  mortgagee  had  been  twenty-one  years 
of  ap-e,  and  had  duly  executed  a  conveyance  or  assignment  of  the  lands 
in  the  same  manner  for  the  same  estate. (?) 

VIII.  And  be  it  enacted,  that  where  any  infant  shall  be  entitled  to 
any  contingent  right  in  any  lands  upon  any  trust  or  by  way  of  mortgage, 
it  shall  be  lawful  for  the  Court  of  Chancery  to  make  an  order  wholly  re- 
leasing such  land  from  such  contingent  right,  or  disposing  of  the  same 
to  such  person  or  persons  as  the  said  court  shall  direct ;  and  the  order 
shall  have  the  same  effect  as  if  the  infant  had  been  twenty-one  years  of 
age,  and  had  duly  executed  a  deed  so  releasing  or  disposing  of  the  con- 
tingent right. 

IX.  And  be  it  enacted,  that  when  any  person  solely  seised  or  pos- 
sessed of  any  lands  upon  any  trust(??i)  shall  be  out  of  the  jurisdiction  of 
the  Court  of  Chancery,  or  cannot  be  found,  it  shall  be  lawful  for  the  said 
court  to  make  an  order  vesting  such  lands  in  such  person  or  persons  in 
such  manner  and  for  such  estate  as  the  said  court  shall  direct ;  and  the 
order  shall  have  the  same  effect  as  if  the  trustee  had  duly  executed  a 
conveyance  or  assignment  of  the  lands  in  the  same  manner  and  for  the 
same  estate. 

X.  And  be  it  enacted,  that  when  any  person  or  persons  shall  be  seised 
or  possessed  of  any  lands  jointly  with  a  person  out  of  the  jurisdiction  of 
the  Court  of  Chancery,  or  who  cannot  be  found,  it  shall  be  lawful  for  the 
said  court  to  make  an  order  vesting  the  lands  in  the  person  or  persons  so 
jointly  seised  or  possessed,  or  in  such  last-mentioned  person  or  persons 
together  with  any  other  person  or  persons,  in  such  manner  and  for  such 
estate  as  the  said  court  shall  direct ;  and  the  order  shall  have  the  same 
effect  as  if  the  trustee  out  of  the  jurisdiction,  or  who  cannot  be  found, 
had  duly  executed  a  conveyance  or  assignment  of  the  lands  in  the  same 
manner  for  the  same  estate. (h) 


[*886] 


XI.  And  be  it  enacted,  that  when  any  person  solely  entitled 
to  a  ^contingent  right  in  any  lands  upon  any  trust  shall  be  out 


(k)  It  is  now  settled,  notwithstanding  the  doubts  entertained  at  first  (see  Re 
Howard's  Estate,  5  De  Gex  &  Sm.  435,)'that  the  court  will  make  an  order,  vesting 
an  estate  on  a  purchase  to  the  uses  commonly  called  the  uses  to  bar  dower ;  but 
will  not  incorporate  a  declaration  that  no  woman  shall  be  entitled  to  dower,  this 
being  no  part  of  the  couveyance.  The  woman,  therefore  (if  married  on  or  before 
Jan.  1,  1834,)  would  be  entitled  to  dower.  Re  Lush's  Estate,  5  De  Gex  &  Sm. 
435  ;  Davey  v.  Miller,  17  Jur.  908.  So  an  order  has  been  made  to  rest  the  legal 
estate  in  the  devisees  of  a  mortgagor,  subject  to  a  charge  created  by  his  will.  Re 
Ellerthorpe,  18  Jur.  6G9. 

(l)  Tenant  for  life  with  remainder  to  an  infant  in  tail.  A  vesting  order  as  to 
the  estate  of  the  infant,  with  the  consent  of  the  tenant  for  life,  will  bar  the  entail 
and  remainders  over.  Powell  v.  Matthews,  1  Jur.  N.  S.  973.  See  the  Interpreta- 
tion Clause  as  to  the  words  "  Convey,"  and  "  Conveyance." 

(to)  An  heir  who  takes  the  trust  estate  by  the  disclaimer  of  the  trustees,  is  a 
trustee  within  the  section;  Wilks  v.  Groom,  6  De  Gex,  M.  &  G.  205. 

(n)  As  to  the  doubts  entertained  respecting  the  effect  of  the  concluding  words 
of  this  section  and  their  solution,  see  Re  Watt's  Settlement,  9  Hare,  106  ;  Flyer's 
Trust,  ib.  p.  220  ;  Smith  v.  Smith,  3  Drewrv,  72. 


TRUSTEE    ACT,    185  0.  689 

of  the  jurisdiction  of  the  Court  of  Chancery,  or  cannot  be  found,  it  shall 
be  lawful  for  the  said  court  to  make  an  order  wholly  releasing  such  lands 
from  such  contingent  right,  or  disposing  of  the  same  to  such  person  or 
persons  as  the  said  court  shall  direct ;  and  the  order  shall  have  the  same 
effect  as  if  the  trustee  had  duly  executed  a  conveyance  so  releasing  or 
disposing  of  the  contingent  right. 

XII.  And  be  it  enacted,  that  when  any  person  jointly  entitled  with 
any  other  person  or  persons  to  a  contingent  right  in  any  lands  upon  any 
trust  shall  be  out  of  the  jurisdiction  of  the  Court  of  Chancery  or  can- 
not be  found,  it  shall  be  lawful  for  the  said  court  to  make  an  order  dis- 
posing of  the  contingent  right  of  the  person  out  of  the  jurisdiction,  or 
who  cannot  be  found,  to  the  person  or  persons  so  jointly  entitled  as  afore- 
said, or  to  such  last-mentioned  person  or  persons  together  with  any  other 
person  or  persons;  and  the  order  shall  have  the  same  effect  as  if  the 
trustee  out  of  the  jurisdiction,  or  who  cannot  be  found,  had  duly  exe- 
cuted a  conveyance  so  releasing  or  disposing  of  the  contingent  right. 

XIII.  And  be  it  enacted,  that  where  there  shall  have  been  two  or 
more  persons  jointly  seised  or  possessed  of  any  lands  upon  any  trust, 
and  it  shall  be  uncertain  which  of  such  trustees  was  the  survivor,  it  shall 
be  lawful  for  the  Court  of  Chancery  to  make  an  order  vesting  such  lands 
in  such  person  or  persons  in  such  manner  and  for  such  estate  as  the  said 
court  shall  direct ;  and  the  order  shall  have  the  same  effect  as  if  the  sur- 
vivor of  such  trustees  had  duly  executed  a  conveyance  or  assignment  of 
the  lands  in  the  same  manner  for  the  same  estate. 

XIV.  And  be  it  enacted,  that  where  any  one  or  more  person  or  per- 
sons shall  have  been  seised  or  possessed  of  any  lands  upon  any  trust, 
and  it  shall  not  be  known,  as  to  the  trustee  last  known  to  have  been 
seised  or  possessed,  whether  he  be  living  or  dead,  it  shall  be  lawful  for 
the  Court  of  Chancery  to  make  an  order  vesting  such  lands  in  such  per- 
son or  persons  in  such  manner  and  for  such  estate  as  the  said  court  shall 
direct ;  and  the  order  shall  have  the  same  effect  as  if  the  last  trustee  had 
duly  executed  a  conveyance  or  assignment  of  the  lands  in  the  same  man- 
ner for  the  same  estate. 

XV.  And  be  it  enacted,  that  when  any  person  seised  of  any  lands 
upon  any  trust  shall  have  died  intestate  as  to  such  lands  without  an  heir, 
or  shall  have  died  and  it  shall  not  be  known  who  is  his  heir  or  devisee, 
it  shall  be  lawful  for  the  Court  of  Chancery  to  make  an  order  vesting 
such  lands  in  such  person  or  persons  in  such  manner  and  for  *such  r^gg-j-i 
estate  as  the  said  court  shall  direct ;  and  the  order  shall  have  L  J 
the  same  effect  as  if  the  heir  or  devisee  of  such  trustee  had  duly  exe- 
cuted a  conveyance  of  the  lands  in  the  same  manner  for  the  same 
estate. 

XVI.  And  be  it  enacted,  that  when  any  lands  are  subject  to  a  con- 
tingent right  in  an  unborn  person  or  class  of  unborn  persons  who  upon 
coming  into  existence  would  in  respect  thereof  become  seised  or  possessed 
of  such  lands  upon  any  trust,  it  shall  be  lawful  for  the  Court  of  Chan- 
cery to  make  an  order  which  shall  wholly  release  and  discharge  such  lands 
from  such  contingent  right  in  such  unborn  person  or  class  of  unborn  per- 
sons, or  to  make  an  order  which  shall  vest  iu  any  person  or  persons  the 


690 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


\ 


estate  or  estates  which  such  unborn  person  or  class  of  unborn  persons 
would  upon  coming  into  existence  be  seised  or  possessed  of  in  such  lands. 

XVII.  And  be  it  enacted,  that  where  any  person  jointly  or  solely 
seised  or  possessed  of  any  lands  upon  any  trust  shall,  after  a  demand  by 
a  person  entitled  to  require  a  conveyance  or  assignment  of  such  lands, 
or  a  duly  authorized  agent  of  such  last-mentioned  persons,  have  stated 
in  writing  that  he  will  not  convey  or  assign  the  same,  or  shall  neglect  or 
refuse  to  convey  or  assign  such  lands  for  the  space  of  twenty-eight  days 
next  after  a  proper  deed  for  conveying  or  assigning  the  same  shall  have 
been  tendered  to  him  by  any  person  entitled  to  require  the  same,  or  by 
a  duly  authorized  agent  of  such  last-mentioned  person,  it  shall  be  lawful 
for  the  Court  of  Chancery  to  make  an  order  vesting  such  lands  in  such 
person  or  persons  in  such  manner  and  for  such  estate  as  the  said  court 
shall  direct;  and  the  order  shall  have  the  same  effect  as  if  the  trustee 
had  duly  executed  a  conveyance  or  assignment  of  the  lands  in  the  same 
manner  for  the  same  estate. (o) 

XVIII.  And  be  it  enacted,  that  where  any  person  jointly  or  solely 
entitled  to  a  contingent  right  in  any  lands  upon  any  trust  shall,  after  a 
demand  for  a  conveyance  or  release  of  such  contingent  right  by  a  person 
entitled  to  require  the  same,  or  a  duly  authorized  agent  of  such  last- 
mentioned  person,  have  stated  in  writing  that  he  will  not  convey  or 
release  such  contingent  right,  or  shall  neglect  or  refuse  to  convey  or 
release  such  contingent  right  for  the  space  of  twenty-eight  days  next 
after  a  proper  deed  for  conveying  or  releasing  the  same  shall  have  been 
tendered  to  him  by  any  person  entitled  to  require  the  same,  or  by  a  duly 
P^oQQ-i  authorized  agent  of  such  last-mentioned  person,  *it  shall  be  law- 
L  -J  ful  for  the  Court  of  Chancery  to  make  an  order  releasing  or  dis- 
posing of  such  contingent  right  in  such  manner  as  it  shall  direct;  and 
the  order  shall  have  the  same  effect  as  if  the  trustee  so  neglecting  or 
refusing  had  duly  executed  a  conveyance  so  releasing  or  disposing  of  the 
contingent  right. 

XIX.  And  be  it  enacted,  that  when  any  person  to  whom  any  lands 
have  been  conveyed  by  way  of  mortgage  shall  have  died  without  having 
entered  into  the  possession  or  into  the  receipt  of  the  rents  and  profits 
thereof,  and  the  money  due  in  respect  of  such  mortgage  shall  have  been 
paid  to  a  person  entitled  to  receive  the  same,  or  such  last-mentioned 
person  shall  consent  to  an  order  for  the  reconveyance  of  such  lands, (^) 
then  in  any  of  the  following  cases  it  shall  be  lawful  for  the  Court  of 
Chancery  to  make  an  order  vesting  such  lands  in  such  person  or  persons 
in  such  manner  and  for  such  estate  as  the  said  court  shall  direct;  that  is 
to  say, 

(o)  This  and  the  following  section  have  been  repealed  by  the  Extension  Act 
(see  sect  2,)  and  a  simpler  enactment  dependent  on  "  demand"  and  on  "  refusal,  or 
neglect,"  substituted. 

(;))  The  personal  representative  of  a  mortgagee  who  has  not  taken  possession 
may  obtain  an  order  vesting  the  legal  estate,  which  has  descended  to  the  heir,  in 
him,  notwithstanding  the  word  "  reconveyance"  points  in  strictness  to  a  convey- 
ance to  the  mortgagor.  Re  Boden's  Trust,  1  De  Gex,  Mac.  &  Gor.  57  ;  9  Hare, 
820;  overruling  Meyrick's  Estate,  9  Hare,  116. 


TRUSTEE    ACT,    1S5  0.  691 

When  an  heir  or  devisee(j)  of  such  mortgagee  shall  be  out  of  the 

jurisdiction  of  the  Court  of  Chancery,(r)  or  cannot  be  found  : 
When  an  heir  or  devisee  of  such  mortgagee  shall,  upon  a  demand  by 
a  person  entitled  to  require  a  conveyance  of  such  lands  or  a  duly 
authorized  agent  of  such  last-mentioned  person,  have  stated  in  writ- 
ing that  he  will  not  convey  the  same,  or  shall  not  convey  the  same 
for  the  space  of  twenty-eight  days  next  after  a  proper  deed  for  con- 
veying such  lands  shall  have  been  tendered  to  him  by  a  person 
entitled  as  aforesaid,(s)  or  a  duly  authorized  agent  of  such  last- 
mentioned  person : 
Wlien  it  shall  be  uncertain  which  of  several  devisees  of  such  mortgagee 

was  -the  survivor : 
When  it  shall  be  uncertain  as  to  the  survivor  of  several  devisees  of 
such  mortgagee,  or  as  to  the  heir  of  such  mortgagee  whether  he  be 
living  or  dead : 
When  such  mortgagee  shall  have  died  intestate  as  to  such  lands,  and 
without  an  heir,  or  shall  have  died  and  it  shall  not  be  known  who 
is  his  heir  or  devisee : 
*And  the  order  of  the  said  Court  of  Chancery  made  in  any  one  r^ggg-i 
of  the  foregoing  cases  shall  have  the  same  effect  as  if  the  heir  or  L         J 
devisee  or  surviving  devisee,  as  the  case  may  be,  had  duly  executed  a 
conveyance  or  assignment  of  the  lands  in  the  same  manner  and  for  the 
same  estate. 

XX.  And  be  it  enacted,  that  in  every  case  where  the  lord  chancellor, 
intrusted  as  aforesaid,  or  the  Court  of  Chancery,  shall,  under  the  provi- 
sions of  this  act,  be  enabled  to  make  an  order  having  the  effect  of  a  con- 
veyance or  assignment  of  any  lands,  or  having  the  effect  of  a  release  or 
disposition  of  the  contingent  right  of  any  person  or  persons,  born  or  un- 
born, it  shall  also  be  lawful  for  the  lord  chancellor,  intrusted  as  aforesaid, 
or  the  Court  of  Chancery,  as  the  case  may  be,  should  it  be  deemed  more 
convenient,  to  make  an  order  appointing  a  person  to  convey  or  assign 
such  lands,  or  release  or  dispose  of  such  contingent  right ;  and  the  con- 
veyance or  assignment,  or  release  or  disposition,  of  the  person  so  ap- 
pointed,(;)  shall,  when  in  conformity  with  the  terms  of  the  order  by 
which  he  is  appointed,  have  the  same  effect,  in  conveying  or  assigning 
the  lands,  or  releasing  or  disposing  of  the  contingent  right,  as  an  order 

(5)  See  the  interpetation  clause,  giving  an  extended  meaning  to  the  word 

{r)  See  Hutchinson  v.  Stephens,  5  Sim.  498  ;  Ex  parte  Dover,  lb.  500,  decided 
on  the  1  W.  4,  c.  60. 

(«)  See  note  (c),  p.  837,  for  the  decisions  on  the  8th  section  of  the  1  W.  4,  c. 
60,  the  words  of  which  are  nearly  the  same.  As  to  the  instrument  to  be  tendered 
in  the  case  of  copyholds,  see  Rowley  v.  Adams,  14  Beav.  130,  where  the  question 
arose  upon  the  17th  section,  since  repealed. 

{t)  The  conveyance  should  contain  a  recital  showing  that  it  is  made  in  obedi- 
ence to  the  order  of  the  court,  and  should  be  executed  by  the  person  appointed  to 
convey  in  his  own  name  ;  though  the  late  vice-chancellor  of  England,  in  a  case 
arising  upon  the  1  W.  4,  c.  60,  seems  to  have  considered  that  the  execution,  by 
the  person  appointed  to  convey,  of  a  deed  purporting  to  be  the  conveyance  of  the 
trustee  who  refused,  would,  with  a  mere  reference  in  the  attestation  clause  to  the 
order  appointing  the  person  to  convey,  be  sufficient.   Ex  parte  Foley,  8  Sim.  395. 


692 


LEWIN  ON  THE  LAW  OF  TKUSTS,  ETC. 


of  the  lord  chancellor,  intrusted  as  aforesaid,  or  the  Court  of  Chancery, 
would  in  the  particular  case  have  had  under  the  provisions  of  this  act ; 
and  in  every  case  where  the  lord  chancellor,  intrusted  as  aforesaid,  or 
the  Court  of  Chancery,  shall,  under  the  provisions  of  this  act,  be  enabled 
to  make  an  order  vesting  in  any  person  or  persons  the  right  to  transfer 
any  stock  transferable  in  the  books  of  the  Governor  and  Company  of  the 
Bank  of  England,  or  of  any  other  company  or  society  established  or  to 
be  established,  it  shall  also  be  lawful  for  the  lord  chancellor,  intrusted  as 
aforesaid,  or  the  Court  of  Chancery,  if  it  be  deemed  more  convenient,  to 
make  an  order  directing  the  secretary,  deputy  secretary,  or  aecountant- 
o-eneral  for  the  time  being  of  the  Grovernor  and  Company  of  the  Bank  of 
England,  or  any  officer  of  such  other  company  or  society,  at  once  to 
transfer  or  join  in  transferring  the  stock  to  the  person  or  persons  to  be 
named  in  the  order;  and  this  act  shall  be  a  full  and  complete  indemnity 
and  discharge  to  the  Governor  and  Company  of  the  Bank  of  England, 
and  all  other  companies  or  societies,  and  their  officers  and  servants,  for 
all  acts  done  or  permitted  to  be  done  pursuant  thereto. 

*XXI.  And  be  it  enacted,  that  as  to  any  lands  situated  within 
L  J  the  duchy  of  Lancaster  or  the  counties  palatine  of  Lancaster  or 
Durham,  it  shall  be  lawful  for  the  court  of  the  Duchy  Chamber  of  Lan- 
caster, the  Court  of  Chancery  in  the  county  palatine  of  Lancaster,  or  the 
Court  of  Chancery  in  the  county  palatine  of  Durham,  to  make  a  like 
order  in  the  same  cases  as  to  any  lands  within  the  jurisdiction  of  the 
same  courts  respectively  as  the  Court  of  Chancery  has  under  the  provi- 
sions hereinbefore  contained  been  enabled  to  make  concerning  any  lands; 
and  every  such  order  of  the  court  of  the  Duchy  Chamber  of  Lancaster, 
the  Court  of  Chancery  in  the  county  palatine  of  Lancaster,  or  the  Court 
of  Chancery  in  the  county  palatine  of  Durham,  shall,  as  to  such  lands, 
have  the  same  effect  as  an  order  of  the  Court  of  Chancery :  provided 
always,  that  no  person  who  is  anywhere  within  the  limits  of  the  jurisdic- 
tion of  the  High  Court  of  Chancery  shall  be  deemed  by  such  local 
courts  to  be  an  absent  trustee  or  mortjrasee  within  the  meaning  of  this 


"CO 

act. 


XXII.  And  be  it  enacted,  that  when  any  person  or  persons  shall  be 
jointly  entitled  with  any  person  out  of  the  jurisdiction  of  the  Court  of 
Chancery,r»)  or  who  cannot  be  found,  or  concerning  whom  it  shall  be 
uncertain  whether  he  be  living  or  dead,  to  any  stock  or  chose  in  action 
upon  any  trust,r?;)  it  shall  be  lawful  for  the  said  court(H')  to  make  an 
order  vesting  the  right  to  transfer  such  stock,  or  to  receive  the  dividends 
or  income  thereof,  or  to  sue  for  or  recover  such  chose  in  action,  or  any 

(«)  Where  the  trustee  out  of  the  jurisdiction  is  incapacitated  from  lunacy  or 
infancy,  the  power  of  the  court  must  be  sought  for  in  the  sections  applicable  to 
cases  of  lunatics  and  infents,  and  not  in  this  section.  Consequentl}',  in  a  case 
arising  before  the  Extension  Act  (see  3rd  section,)  the  court  had  no  authority  to 
make  a  vesting  order  with  respect  to  stock  held  by  an  infant  trustee  out  of  the 
jurisdiction.    Cramer  v.  Cramer,  5  De  Gex  &  Sm.  312. 

(v)  The  husband  of  an  executrix  is  a  trustee  within  the  act.  Ex  parte  Brad- 
shaw,  2  De  Gex,  Mac.  &  Gor.  900. 

(w)  If  the  court  be  asked  to  transfer  the  stock  to  new  trustees  appointed  under 
a  power,  it  must  first  be  satisfied  of  the  fitness  of  the  persons  proposed,  and  all 
parties  interested  must  be  served.     Re  Maynard's  Settlement,  16  Jur.  1084. 


TRUSTEE    ACT,    1S5  0.  693 

interest  in  respect  thereof,  either  in  such  person  or  persons  so  jointly 
entitled  as  aforesaid,  or  in  such  last-mentioned  person  or  persons  together 
with  any  person  or  persons  the  said  court  may  appoint;  and  when  any 
sole  trustee(j;)  of  any  stock  or  chose  in  action  shall  be  out  of  the  jurisdic- 
tion of  the  said  court,  or  cannot  be  found,  or  it  shall  be  uncertain  whether 
he  be  living  or  dead,  it  shall  be  lawful  for  the  said  court  to  make  an 
order  vesting  the  right  to  transfer  such  stock,  or  to  receive  the  dividends 
or  income  thereof,  or  *to  sue  for  and  recover  such  chose  in  ac-  r^ogi-i 
tion,  or  any  interest  in  respect  thereof,  in  any  person  or  persons  L  J 
the  said  court  may  appoint. 

XXIII.  And  be  it  enacted,  that  where  any  sole  trustee(y)  of  any  stock 
or  chose  in  action  shall  neglect  or  refuse  to  transfer  such  stock,  or  to 
receive  the  dividends  or  income  thereof,  or  to  sue  for  or  recover  such 
chose  in  action,  or  any  interest  in  respect  thereof,  according  to  the  direc- 
tion of  the  person  absolutely  entitled  thereto, (..)  for  the  space  of  twenty- 
eight  days  next  after  a  request  in  writing(a)  for  that  purpose  shall  have 
been  made  to  him  by  the  person  absolutely  entitled  thereto,  it  shall  be 
lawful  for  the  Court  of  Chancery  to  make  an  order  vesting  the  sole  right 
to  transfer  such  stock,  or  to  receive  the  dividends  or  income  thereof,(6) 
or  to  sue  for  and  recover  such  chose  in  action,  or  any  interest  in  respect 
thereof,  in  such  person  or  persons  as  the  said  court  may  appoint. (c) 

XXIV.  And  be  it  enacted,  that  where  any  one  of  the  trustees  of  any 
stock  or  chose  in  action  shall  neglect  or  refuse  to  transfer  such  stock,  or 
to  receive  the  dividends  or  income  thereof,  or  to  sue  for  or  recover  such 
chose  in  action  according  to  the  directions  of  the  person  absolutely  entitled 
thereto,  for  the  space  of  twenty-eight  days  next  after  a  request  in  writing 
for  that  purpose  shall  have  been  made  to  him  or  her  by  such  person,  it 
shall  be  lawful  for  the  Court  of  Chancery  to  make  an  order  vesting  the 
right  to  transfer  such  stock,  or  to  receive  the  dividends  or  income  thereof, 
or  to  sue  for  and  recover  such  chose  in  action,  in  the  other  trustee  or 
trustees  of  the  said  stock  or  chose  in  action,  or  in  any  person  or  persons 
whom  the  said  courtmayappoint  jointly  with  such  other  trusteeor  trustees. 

(z)  A.  and  B.  being  trustees,  the  master  found  that  it  was  uncertain  whether 
A.  was  living  or  dead,  but  that  B.  was  living.  Afterwards  B.  died.  Held,  that  A. 
was  not  a  sole  trustee  within  the  meaning  of  the  22nd  section.  Re  Randall's  Will. 
1  Drewry,  401. 

{y)  Sole  trustee  may  mean  the  whole  number  of  the  co-trustees.  See  interpre- 
tation clause.     Re  Hartnall,  5  De  Gex  &  Sm.  111. 

(z)  A  tenant  for  life  is  not  a  person  absolutely  entitled  within  the  meaning  of  the 
act,  except,  perhaps,  for  the  purpose  of  an  application  limited  to  the  income  only, 
nor  is  one  of  two  trustees ;  Mackenzie  v.  Mackenzie,  5  De  Gex  &  Sm.  338  ;  more 
fully  reported  16  Jur.  723.  But  persons  duly  appointed  new  trustees  are  "  abso- 
lutely entitled;"  Ex  parte  Russell,  1  Sim.  N.  S.  404  ;  Baxter's  Will,  2  Sm.  &  GifiF. 
Append,  v. 

(a)  The  case  of  a  trustee  refusing  to  obey  the  order  of  the  court  was  not  within 
this  section  ;  Mackenzie  v.  Mackenzie,  5  De  Gex  &  Sm.  338.  And  so  it  was 
under  1  W.  4,  c.  60  ;  see  note  (a),  p.  839.  But  see  now  sect.  4  of  the  Extension 
Act  providing  for  this  case. 

(b)  The  court  cannot,  under  this  section,  make  any  order  as  to  dividends 
accrued  due  subsequently  to  the  date  of  request.  Re  Hartnall,  5  De  Gex  &  Sm. 
111.     See  now  sect.  4  of  Extension  Act. 

(c)  The  recusant  trustee  need  not  be  served  under  this  and  the  following  sec- 
tion. Baxter's  Will,  2  Sm.  &  Giff.  A  pp.  v. :  and  see  cases  under  1  W.  4,  c.  60, 
note  (c),  p.  837. 


(394      LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

XXV.  And  be  it  enacted,  that  when  any  stock  shall  be  standing  in 
the  sole  name  of  a  deceased  person,  and  his  or  her  personal  representative 
shall  be  out  of  the  jurisdiction  of  the  Court  of  Chancery,  or  cannot  be 

found,  or  it  shall  be  uncertain  whether  such  personal  *represen- 
[=^89--]  ^j^jj^g  ^Q  living  or  dead,  or  such  personal  representative  shall 
neo'lect  or  refuse  to  transfer  such  stock,  or  receive  the  dividends  or  income 
thereof,  according  to  the  direction  of  the  person  absolutely  entitled 
thereto,  for  the  space  of  twenty-eight  days  next  after  a  request  in  writing 
for  that  purpose  shall  have  been  made  to  him  by  the  person  entitled  as 
aforesaid,  it  shall  be  lawful  for  the  Court  of  Chancery  to  make  an  order 
vesting  the  right  to  transfer  such  stock,  or  to  receive  the  dividends  or 
income  thereof,  in  any  person  or  persons  whom  the  said  court  may  ap- 
point. 

XXVI.  And  be  it  enacted,  that  where  any  order  shall  have  been  made 
under  any  of  the  provisions  of  this  act  vesting  the  right(c?)  to  any  stock 
in  any  person  or  persons  appointed  by  the  lord  chancellor,  instructed  as 
aforesaid,  or  the  Court  of  Chancery,  such  legal  right  shall  vest  accord- 
ingly, and  thereupon  the  person  or  persons  so  appointed  are  hereby 
authorized  and  empowered  to  execute  all  deeds  and  powers  of  attorney, 
and  to  perform  all  acts  relating  to  the  transfer  of  such  stock  into  his  or 
their  own  name  or  names  or  otherwise,  or  relating  to  the  receipt  of  the 
dividends  thereof,  to  the  extent  and  in  conformity  with  the  terms  of  such 
order;  and  the  Bank  of  England,  and  all  companies  and  associations 
whatever,  and  all  persons,  shall  be  equally  bound  and  compellable  to 
comply  with  the  requisitions  of  such  person  or  persons,  so  appointed  as 
aforesaid,  to  the  extent  and  in  conformity  with  the  terms  of  such  order 
as  the  said  Bank  of  England,  or  such  companies,  associations  or  persons, 
would  have  been  bound  and  compellable  to  comply  with  the  requisitions 
of  the  person  in  whose  place  such  appointment  shall  have  been  made, 
and  shall  be  equally  indemnified  in  complying  with  the  requisition  of 
such  person  or  persons  so  appointed  as  they  would  have  been  indemnified 
in  complying  with  the  requisition  of  the  person  in  whose  place  such 
appointment  shall  have  been  made ;  and  after  notice  in  writing  of  any 
such  order  of  the  lord  chancellor,  intrusted  as  aforesaid,  or  of  the  Court 
of  Chancery,  concerning  any  stock,  shall  have  been  given,  it  shall  not  be 
lawful  for  the  Bank  of  England,  or  any  company  or  association  whatever, 
or  any  person  having  received  such  notice,  to  act  upon  the  requisition  of 
the  person  in  whose  place  an  appointment  shall  have  been  made  in  any 
matter  whatever  relating  to  the  transfer  of  such  stock,  or  the  payment  of 
the  dividends  or  produce  thereof. 

XXVII.  And  be  it  enacted,  that  where  any  order  shall  have  been 
made  under  the  provisions  of  this  act,  either  by  the  lord  chancellor, 
P8931  ^^'^^^s^'Sd  as  aforesaid,  or  by  the  Court  of  Chancery,  vesting  the 

J  legal  right  to  sue  for  or  recover  any  chose  in  action  or  any  inte- 
rest in  respect  thereof  in  any  person  or  persons,  such  legal  right  shall 
vest  accordingly,  and  thereupon  it  shall  be  lawful  for  the  person  or  per- 
sons so  appointed  to  carry  on,  commence  and  prosecute,  in  his  or  their 

{(1)  See  note  (s),  p.  89G,  infra,  and  sect.  6  of  the  Extension  Act. 


TRUSTEE    ACT,    1S5  0.  695 

own  name  or  names,  any  action,  suit  or  other  proceeding  at  law  or  in 
equity  for  the  recovery  of  such  chose  in  action,  in  the  same  manner  in 
all  respects  as  the  person  in  whose  place  an  appointment  shall  have  been 
made  could  have  sued  for  or  recovered  such  chose  in  action. 

XXVIII.  And  be  it  enacted,  that  whensoever,  under  any  of  the  pro- 
visions of  this  act,  an  order  shall  be  made,  either  by  the  lord  chancellor, 
intrusted  as  aforesaid,  or  the  Court  of  Chancery,  vesting  any  copyhold  or 
customary  lands  in  any  person  or  persons,  and  such  order  shall  be  made 
with  the  consent^?)  of  the  lord  or  lady  of  the  manor  whereof  such  lauds 
are  holden,  then  the  lands  shall,  without  any  surrender  or  admittance  in 
respect  thereof,  vest  accordingly  •  and  whenever,  under  any  of  the  pro- 
visions of  this  act,  an  order  shall  be  made  either  by  the  lord  chancellor, 
intrusted  as  aforesaid,  or  the  Court  of  Chancery,  appointing  any  person 
or  persons  to  convey  or  assign  any  copyhold  or  customary  lands,  it  shall 
be  lawful  for  such  person  or  persons  to  do  all  acts  and  execute  all  instru- 
ments for  the  purpose  of  completing  the  assurance  of  such  lands ;(/) 
and  all  such  acts  and  instruments  so  done  and  executed  shall  have  the 
same  effect,  and  every  lord  and  lady  of  a  manor,  and  every  other  person, 
shall,  subject  to  the  customs  of  the  manor  and  the  usual  payments,  be 
equally  bound  and  compellable  to  make  admittance  to  such  lands,  and  to 
do  all  other  acts  for  the  purpose  of  completing  the  assurance  thereof,  as 
if  the  persons  in  whose  place  an  appointment  shall  have  been  made,  being 
free  from  any  disability,  had  duly  done  and  executed  such  acts  and  instru- 
ments. 

XXIX.  And  be  it  enacted,  that  when  a  decree  shall  have  been  made 
by  any  court  of  equity  directing  the  sale  of  any  lands  for  the  payment  of 
the  debts((7)  of  a  deceased  person,  every  person  seised  or  possessed  of 
such  lands,  or  entitled  to  a  contingent  right  therein,  as  heir,  or  r,^nQj^T 
*under  the  will  of  such  deceased  debtor,  shall  be  deemed  to  be  L  J 
so  seised  or  possessed  or  entitled,  as  the  case  may  be,  upon  a  trust  within 
the  meaning  of  this  act ;  and  the  Court  of  Chancery  is  hereby  empowered 
to  make  an  order  wholly  discharging  the  contingent  right,  under  the 
will  of  such  deceased  debtor,  of  any  unborn  person. (/t) 

XXX.  And  be  it  enacted,  that  where  any  decree  shall  be  made  by  any 
court  of  equity  for  the  specific  performance  of  a  contract  concerning  any 
lands, (i)  or  for  the  partition (7^:)  or  exchange  of  any  lands,  or  generally 
when  any  decree  shall  be  made  for  the  conveyance  or  assignment  of  any 

(e)  There  appears  to  be  a  conflict  between  the  practice  in  the  different  branches 
of  the  court  upon  the  question  -whether  a  vesting  order  will  be  made  without  the 
lord's  consent,  '^  valeat  quantum;"  see  Re  Flitcroft,  1  Jur.  N.  S.  418,  cor.  V.  C. 
Wood  ;  Cooper  v.  Jones,  2  Jur.  N.  S.  59,  cor.  V.  C.  Stuart.  The  consent  need  not 
be  by  appearance  in  court ;  Ayles  v.  Cox,  17  Beav.  585. 

(/)  See  form  of  order  appointing  a  person  to  complete  the  assurance  of  a  copy- 
hold estate.  Re  Hey's  Will,  9  Hare,  221. 

{g)  A  sale  for  payment  of  costs  of  suit  was  not  within  this  act :  Weston  v.  Filer, 
5  De  Gex  &  Sm.  608.  But  see  now  sect.  1  of  the  Extension  Act,  and  Walie  v. 
Wake,  17  Jur.  545. 

{h)  Wood  V.  Beetlestone,  1  Kay  &  John.  213. 

{i)  See  Ex  parte  Mornington,  4  De  Gex,  Mac.  &  Gor.  537. 

{k)  In  a  partition  suit,  instead  of  giving  an  infant  entitled  to  a  share  a  day  to 
show  cause,  the  court  may  declare  him  a  trustee  of  such  parts  of  the  property  as 
are  allotted  to  other  parties.     Bowra  v.  Wright,  4  De  Gex  &  Sm.  265. 


696 


LEWIN  ON  THE  LAW  OF  TKUSTS,  ETC. 


I 


lands,(A  either  in  cases  arising  out  of  the  doctrine  of  election  or  other- 
wise,'it  shall  be  lawful  for  the  said  court  to  declare  that  any  of  the  parties 
to  the  said  suit  wherein  such  decree  is  made  are  trustees  of  such  lands 
or  any  part  thereof,  within  the  meaning  of  this  act,  or  to  declare  con- 
cerning the  interests  of  unborn  persons  who  might  claim  under  any  party 
to  the  said  suit,  or  under  the  will  or  voluntary  settlement  of  any  person 
deceased  who  was  during  his  lifetime  a  party  to  the  contract  or  transac- 
tions concerning  which  such  decree  is  made,  that  such  intersts  of  unborn 
persons  are  the  interests  of  persons  who,  upon  coming  into  existence, 
would  be  trustees  within  the  meaning  of  this  act,  and  thereupon  it  shall 
be  lawful  for  the  lord  chancellor,  intrusted  as  aforesaid,  or  the  Court  of 
Chancery,  as  the  case  may  be,  to  make  such  order  or  orders  as  to  the 
estates,  rights  and  interests  of  such  persons,  born  or  unborn,  as  the  said 
court  or  the  said  lord  chancellor  might  under  the  provisions  of  this  act 
make  concerning  the  estates,  rights  and  interests  of  trustees  born  or 
unborn. 

XXXI.  And  be  it  enacted,  that  it  shall  be  lawful  for  the  lord  chan- 
cellor, intrusted  as  aforesaid,  or  the  Court  of  Chancery,  to  make  declara- 
tions and  give  directions  concerning  the  manner  in  which  the  right  to 
any  stock  or  chose  in  action  vested  under  the  provisions  of  this  act  shall 
be  exercised ;  and  thereupon  the  person  or  persons  in  whom  such  right 
r*SQfSn  ^^^^^  ^®  vested  shall  be  compellable  to  obey  such  *directionsand 
L  J  declarations  by  the  same  process  as  that  by  which  other  orders 
under  this  act  are  enforced. 

XXXII.  And  be  it  enacted,  that  whenever  it  shall  be  expedicnt(m) 
to  appoint(?i)  a  new  trustee  or  new  trustees,  and  it  shall  be  found  inex- 
pedient, difficult(o)  or  impracticable  so  to  do  without  the  assistance  of 
the  Court  of  Chancery,  it  shall  be  lawful  for  the  said  Court  of  Chancery 
to  make  an  order  appointing  a  new  trustee  or  new  trustees,  either  in 
substitution  for  or  in  addition  to  any  existing  trustee  or  trustees. Qj) 

(Z)  Tn  a  foreclosure  suit  by  an  equitable  mortgagee,  a  decree  had  been  made 
for  pa3'ment,  or,  in  default,  for  foreclosure  and  conveyance  by  the  viortgagor  of  the 
legal  estate.  The  mortgagor  made  default.  The  court  refused,  on  motion  to  make 
the  order  of  foreclosure  absolute,  to  add  a  declaration  that  the  mortgagor  was  a 
trustee  for  the  mortgagee,  and  said  that  a  separate  application  must  be  made  ; 
Smith  V.  Boucher,  1  Sm.  &  Giff.  72.  As  to  the  necessity  for  an  express  declara- 
ration  in  terms,  see  the  cases  on  sect.  18  of  the  1  W.  4,  c.  60  ;  note  (/),  p.  839, 
supra. 

{m)  If  one  of  the  tn;stees  be  a  lunatic,  so  that  the  estate  cannot  be  got  from 
him  without  the  aid  of  the  court,  though  there  is  a  po\ver  of  appointment  of  new 
trustees,  in  such  a  case  the  court  will  appoint  a  new  trustee  and  make  the  vest- 
ing order.  Re  Davies,  3  Mac.  &  Gor.  278.  So  where  one  of  the  two  trustees 
appointed  by  a  will  is  an  infant,  the  court  deems  it  expedient  to  appoint  a  trustee 
in  his  place.     Re  Porter's  Trust,  2  Jur.  N.  S.  349. 

[n)  The  court  cannot,  under  the  act,  remove  a  trustee  who  is  willing  to  act.  Re 
Hodson's  Settlement,  9  Hare,  118  ;  Re  Hadley,  5  De  Gex  &  Sm.  67.  And  in  a 
case  where  one  of  two  trustees  was  residing  out  of  the  jurisdiction,  but  it  did  not 
appear  whether  such  residence  was  likely  to  be  permanent,  the  court  refused  to 
appoint  a  new  trustee  in  his  room.     Re  Mais,  16  Jur.  608. 

(o)  See  Re  Humphry's  Estate,  1  Jur.  N.  S.  921,  where  the  parties  having  the 
power  of  appointing  new  trustees  were  resident  in  India. 

{p)  The  decisions  were  in  conflict  whether  under  this  section  the  court  could 
appoint  new  trustees  in  a  case  where  there  was  no  existing  trustee.  Vice  Chancel- 
lor Parker  holding  the  affirmative  ;  Re  Tvler's  Trust,  5  De  Gex  &  Sm.  56  ;  and 


TRUSTEE    ACT,    185  0.  697 

XXXIII.  And  be  it  enacted,  that  the  person  or  persons  who,  upon 
the  making  of  such  order  as  last  aforesaid,  shall  be  trustee  or  trustees, 
shall  have  all  the  same  rights  and  powers  as  he  or  they  would  have  had 
if  appointed  by  decree  in  a  suit  duly  instituted. 

XXXIV.  And  be  it  enacted,  that  it  shall  be  lawful(5')  for  the  said 
Court  of  Chancery,  upon  making  any  order  for  appointing  a  new  trustee 
or  new  trustees,  eit^ier  by  the  same  or  by  any  subsequent  order,  to  direct 
that  any  lands  subject  to  the  trust  shall  vest  in  the  person  or  persons 
who  upon  the  appointment  shall  be  the  trustee  or  trustees,  for  such 
estate  as  the  court  shall  direct ;  and  such  order  *shall  have  the  r*onr-| 
same  effect  as  if  the  person  or  persons  who  before  such  order  L  J 
were  the  trustee  or  trustees  (if  a^ny)  had  duly  executed  all  proper  con- 
veyances and  assignments  of  such  lands  for  such  estate. (r) 

XXXV.  And  be  it  enacted,  that  it  shall  be  lawful  for  the  said  Court 
of  Chancery,  upon  making  any  order  for  appointing  a  new  trustee  or  new 
trustees,  either  by  the  same  or  by  any  subsequent  order,  to  vest  the 
right  to  call  for  a  transfer  of  any  stock(*)  subject  to  the  trust,  or  to 
receive  the  dividends  or  income  thereof,  or  to  sue  for  or  recover  any 
chose  in  action,  subject  to  the  trust,  or  any  interest  in  respect  thereof, 
in  the  person  or  persons  who  upon  the  appointment  shall  be  the  trustee 
or  trustees. 

XXXVI.  And  be  it  enacted,  that  any  such  appointment  by  the  court 
of  new  trustees,  and  any  such  conveyance,  assignment,  or  transfer  as 
aforesaid,  shall  operate  no  further  or  otherwise  as  a  discharge  to  any 
former  or   continuing   trustee   than    an  appointment  of   new  trustees 

Vice  Chancellor  Turner  the  negative  ;  Re  Hazeldine,  16  Jur.  853.  And  see  Re 
Frosts  Settlement,  15  Jur.  644.  All  doubt  for  the  future  was  removed  by  the  9th 
section  of  the  Extension  Act. 

The  court,  in  appointing  new  trustees  under  this  section,  does  not  limit  itself 
necessarily  to  the  number  named  in  the  original  instrument  of  trust.  Thus  it  has 
appointed  two  instead  of  one  ;  Tunstall's  AVill,  4  De  Gex  &  Sm.  421.  But  it  never 
appoints  a  single  trustee  where  there  were  originally  more  than  one  ;  Ellison's 
Trust,  2  Jur.  N.  S.  62  ;  Porter's  Trust,  2  Jur.  N.  S.  349. 

As  to  the  parties  to  be  served,  see  note  (v),  p.  897,  infra. 

In  addition  to  evidence  of  the  necessary  facts  to  bring  the  case  within  the  act, 
the  court,  before  appointing  trustees,  requires  evidence  by  affidavit  of  the  fitness 
of  the  proposed  trustees,  and  a  written  consent  by  the  trustees  to  act ;  Battersby's 
Trust,  16  Jur.  900.  The  trust  property  having  greatly  increased,  the  court,  upon 
an  application  under  the  act,  appointed  two  additional  trustees,  though  the  instru- 
ment of  trust  provided  for  two  only.     Boycott's  Settlement,  5  Weekly  Rep.  15. 

{q)  The  late  Vice  Chancellor  Parker  was  indisposed  to  make  a  vesting  order  in 
cases  where  a  conveyance  could  be  had  ;  Langhorn  v.  Langhorn,  21  L.  J.  Ch.  860. 
But  it  is  clear  that  the  court  has  power  to  make,  and  according  to  the  present 
practice  it  frequently  does  make,  vesting  orders,  even  where  there  is  no  incaj^acity 
in  the  person  seised  or  possessed  of  the  legal  estate  to  convey  to  the  new  trustees  ; 
Re  Manning's  Trust,  Kay,  App.  xxviii. 

(r)  The  court  has  jurisdiction  to  divest  the  whole  estate  from  the  continuing 
and  incapacitated  trustee,  and  to  vest  it  in  the  new  body  of  trustees  (including  the 
continuing  trustees,)  as  joint  tenants  ;  Smith  v.  Smith,  3  Drewry,  T2,  overruling 
Re  Watt's  Settlement,  9  Hare,  106  ;  Re  Plyer,  ib.  220. 

(s)  The  court  had  no  power  under  this  section  to  vest  the  right  to  the  stock 
itself,  but  only  the  right  to  call  for  a  transfer;  and  an  order  professing  to  vest  the 
right  to  the  stock  was  accordingly  discharged.  Be  Smyth's  Settlement,  4  De  Gex 
&  Sm.  499.     But  see  now  sect.  6  of  the  Extension  Act. 

May,  1858.— 45 


698 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


under  any  power  for  that  purpose  contained  in  any  instrument  would 

have  done. 

XXXVII.  And  be  it  enacted,  that  an  order,  under  any  of  the  here- 
inbefore contained  provisions,  for  the  appointment  of  a  new  trustee  or 
trustees,  or  concerning  any  lands,  stock,  or  chose  in  action  subject  to  a 
trust,  may  be  made  upon  the  application  of  any  person  beneficially  inter- 
ested in  such  lands,  stock,  or  chose  in  action,  whether  under  disability 
or  not,  or  upon  the  application  of  any  person  duly  appointed  as  a  trustee 
thereof ;(?)  and  that  an  order  under  any  of  the  provisions  hereinbefore 
contained  concerning  any  lands,  stock,  or  chose  in  action  subject  to  a 
mortgage,  may  be  made  on  the  application  of  any  person  beneficially 
interested  in  the  equity  of  redemption,  whether  under  disability  or  not, 
or  of  any  person  interested  in  the  moneys  secured  by  such  mortgage. 

XXXVIII.  And  be  it  enacted,  that  when  any  person  shall  deem  him- 
self entitled  to  an  order  under  any  of  the  provisions  hereinbefore  con- 
tained,, either  from  the  lord  chancellor,  intrusted  as  aforesaid,  or  from 

-^  the  Court  of  Chancery,  it  shall  be  lawful  for  him  to  exhibit 
L  J  *before  any  one  of  the  masters  of  the  High  Court  of  Chancery  a 
statement  of  the  facts  whereon  such  order  is  sought  to  be  obtained,  and 
adduce  evidence  in  support  thereof;  and  if  such  evidence  shall  be  satis- 
factory to  the  said  master,  he  shall,  at  the  request  of  the  person  adducing 
such  evidence,  give  a  certificate  under  his  hand  of  the  several  material 
facts  found  by  him  to  be  true,  and  of  his  opinion  that  such  person  is 
entitled  to  an  order  in  the  form  set  forth  in  such  certificate. (?<) 

XXXIX.  And  be  it  enacted,  that  any  person  who  shall  have  obtained 
such  certificate  may  apply  by  motion  to  the  Court  of  Chancery,  or  to  the 
lord  chancellor  intrusted  as  aforesaid,  for  an  order  to  the  eff"ect  set  forth 
in  such  certificate,  or  for  such  other  order  as  such  person  may  deem  him- 
self entitled  to  upon  the  facts  found  by  the  master. 

XL.  And  be  it  enacted,  that  any  person  or  persons  entitled  in  manner 
aforesaid  to  apply  for  an  order  from  the  said  Court  of  Chancery,  or  from 
the  lord  chancellor  intrusted  as  aforesaid,  may,  should  he  so  think  fit, 
present  a  petition  in  the  first  instance  to  the  Court  of  Chancery,  or  to 
the  lord  chancellor  intrusted  as  aforesaid,  for  such  order  as  he  may  deem 
himself  entitled  to,  and  may  give  evidence  by  affidavit  or  otherwise  in 
support  of  such  petition  before  the  said  court,  or  the  lord  chancellor 
intrusted  as  aforesaid,  and  may  serve  such  person  or  persons  with  notice 
of  such  petition  as  he  may  deem  entitled  to  service  thereof.(i;) 

XLI.  And  be  it  enacted,  that  upon  the  hearing  of  any  such  motion 
or  petition  it  shall  be  lawful  for  the  said  court,  or  for  the  said  lord  chan- 
cellor, should  it  be  deemed  necessary,  to  direct  a  reference  to  one  of  the 

(t)  As  to  the  proper  persoa  to  petition  in  the  case  of  sales  by  the  court,  see 
Rowley  v.  Adams,  14  Beav.  130  ;  Ayles  v.  Cox,  17  Beav.  584. 

(«)  This  and  the  following  section  have  ceased  to  be  of  any  use  since  the  abo- 
lition of  the  office  of  master. 

(i)  In  petitions  for  the  appointment  of  new  trustees,  all  the  cestuis  que  trust 
ought,  as  a  general  rule,  to  be  served.  Re  Richards'  Trust,  5  De  Gex  &  Sm.  636  ;  Re 
Sloper,  18  Beav.  596;  Re  Fellows'  Settlement,  2  Jur.  N.  S.  62.  And  the  old  trus- 
tees (if  any)  must  appear  ;  Re  Sloper,  ubi  supra.  But  in  special  cases  the  court 
relaxes  the  rule.    Re  Symth's  Settlement,  2  De  Gex  &  Sm.  V81. 


TRUSTEE    ACT,    185  0.  699 

masters  in  ordinary  of  the  Court  of  Chancery  to  inquire  into  any  facts 
which  require  such  an  investigation,  or  it  shall  be  lawful  for  the  said 
court,  or  for  the  said  lord  chancellor  to  direct  such  motion  or  petition  to 
stand  over,  to  enable  the  petitioner  or  petitioners  to  adduce  evidence  or 
further  evidence  before  the  said  court,  or  before  the  said  lord  chan- 
cellor, or  to  enable  notice  or  any  further  notice  of  such  motion  or  peti- 
tion to  be  served  upon  any  person  or  persons. 

XLII.  And  be  it  enacted,  that  upon  the  hearing  of  any  such  motion 
*or  petition,  whether  any  certificate  or  report  from  a  master  shall  r^ggg-i 
have  been  obtained  or  not,  it  shall  be  lawful  for  the  court,  or  the  •-  J 
lord  chancellor,  intrusted  as  aforesaid,  to  dismiss  such  motion  or  petition, 
with  or  without  costs,  or  to  make  an  order  thereupon  in  conformity  with 
the  provisions  of  this  act. 

XLIII.  And  be  it  enacted,  that  whensoever  in  any  cause  or  matter, 
either  by  the  evidence  adduced  therein,  or  by  the  admissions  of  the  par- 
ties, or  by  a  report  of  one  of  the  masters  of  the  Court  of  Chancery,  the 
facts  necessary  for  an  order  under  this  act  shall  appear  to  such  court 
to  be  sufficiently  proved,  it  shall  be  lawful  for  the  said  court,  either 
upon  the  hearing  of  the  said  cause  or  of  any  petition  or  motion  in  the 
said  cause  or  matter,  to  make  such  order  under  this  act.(Mj) 

XLIV.  And  be  it  enacted,  that  whenever  atiy  order  shall  be  made 
under  this  act,  either  by  the  lord  chancellor  intrusted  as  aforesaid,  or  by 
the  Court  of  Chancery,  for  the  purpose  of  conveying  or  assigning  any 
lands,  or  for  the  purpose  of  releasing  or  disposing  of  any  contingent 
right,  and  such  order  shall  be  founded  on  an  allegation  of  the  personal 
incapacity  of  a  trustee  or  mortgagee,  or  on  an  allegation  that  a  trustee  or 
the  heir  or  devisee  of  a  mortgagee  is  out  of  the  jurisdiction  of  the  Court 
of  Chancery  or  cannot  be  found,  or  that  it  is  uncertain  which  of  several 
trustees,  or  which  of  several  devisees  of  a  mortgagee,  was  the  survivor, 
or  whether  the  last  trustee,  or  the  heir  or  last  surviving  devisee  of  a 
mortgagee,  be  living  or  dead,  or  on  an  allegation  that  any  trustee  or 
mortgagee  has  died  intestate  without  an  heir,  or  has  died  and  it  is  not 
known  who  is  his  heir  or  devisee,  then  in  any  of  such  cases  the  fact  that 
the  lord  chancellor  intrusted  as  aforesaid,  or  the  Court  of  Chancery,  has 
made  an  order  upon  such  an  allegation,  shall  be  conclusive  evidence  of 
the  matter  so  alleged  in  any  court  of  law  or  equity  upon  any  question  as 
to  the  legal  validity  of  the  order  :  Provided  always,  that  nothing  herein 
contained  shall  prevent  the  Court  of  Chancery  directing  a  reconveyance 
or  re-assignment  of  any  lands  conveyed  or  assigned  by  any  order  under 
this  act,  or  a  redisposition  of  any  contingent  right  conveyed  or  disposed 
of  by  such  order  -,  and  it  shall  be  lawful  for  the  said  court  to  direct  any 
of  the  parties  to  any  suit  concerning  such  lands  or  contingent  right  to 
pay  any  costs  occasioned  by  the  order  under  this  act,  when  the  same 
shall  appear  to  have  been  improperly  obtained. 

XLV.  And  be  it  enacted,  that  it  shall  be  lawful  for  the  lord  chan- 
cellor ^intrusted  as  aforesaid,  or  the  Court  of  Chancery,  to  exer-  r^ggg-i 
cise  the  powers  herein  conferred  for  the  purpose  of  vesting  any  L         -• 

(w)  See  Wood  v.  Beetlestone,  1  Kay  &  Johns.  213. 


700 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


lands,  stock,  or  cbose  in  action  in  the  trustee  or  trustees  of  any  charity 
or  society  over  which  charity  or  society  the  said  Court  of  Chancery  would 
have  jurisdiction  upon  suit  duly  instituted, (jc)  whether  such  trustee  or  trus- 
tees shall  have  been  duly  appointed  by  any  power  contained  in  any  deed 
or  instrument,  or  by  the  decree  of  the  said  Court  of  Chancery,  or  by 
order  made  upon  a  petition  to  the  said  court  under  any  statute  autho- 
rizing the  said  court  to  make  an  order  to  that  effect  in  a  summary  way 
upon  petition. 

XLVI.  And  be  it  enacted,  that  no  lands,  stock,  or  chose  in  action, 
vested  in  any  person  upon  any  trust  or  by  way  of  mortgage,  or  any  pro- 
fits thereof,  shall  escheat  or  be  forfeited  to  her  majesty,  her  heirs  or  suc- 
cessors, or  to  any  corporation,  lord  or  lady  of  a  manor,  or  other  person, 
by  reason  of  the  attainder  or  conviction  for  any  offence  of  such  trustee 
or  mortgagee,  but  shall  remain  in  such  trustee  or  mortgagee,  or  survive 
to  his  or  her  co-trustee,  or  descend  or  vest  in  his  or  her  representative, 
as  if  no  such  attainder  or  conviction  had  taken  place. (y) 

XLVII.  And- be  it  enacted,  that  nothing  contained  in  this  act  shall 
prevent  the  escheat  or  forfeiture  of  any  lands  or  personal  estate  vested 
in  any  such  trustee  or  mortgagee,  so  far  as  relates  to  any  beneficial  in- 
terest therein  of  any  such  trustee  or  mortgagee,  but  such  lands  or  per- 
sonal estate,  so  far  as  relates  to  any  such  beneficial  interest,  shall  be  re- 
coverable in  the  same  manner  as  if  this  act  had  not  passed. («) 

XLVIII.  And  be  it  enacted,  that  where  any  infant  or  person  of  un- 
sound mind  shall  be  entitled  to  any  money  payable  in  discharge  of  any 
lands,  stock,  or  chose  in  action  conveyed,  assigned,  or  transferred  under 
this  act,  it  shall  be  lawful  for  the  person  by  whom  such  money  is  pay- 
able to  pay  the  same  into  the  Bank  of  England,  in  the  name  and  with 
the  privity  of  the  accountant-general,  in  trust  in  any  cause  then  depend- 
ing concerning  such  money,  or,  if  there  shall  be  no  such  cause,  to  the 
credit  of  such  infant  or  person  of  unsound  mind,  subject  to  the  order  or 
disposition  of  the  said  court ;  and  it  shall  be  lawful  for  the  said  court, 
r^QOni  ^V^^  petition  in  a  summary  way,  to  order  any  *money  so  paid  to 
L  J  be  invested  in  the  public  funds,  and  to  order  payment  or  distri- 
bution thereof,  or  payment  of  the  dividends  thereof,  as  to  the  said  court 
shall  seem  reasonable;  and  every  cashier  of  the  Bank  of  England  who 
shall  receive  any  such  money  is  hereby  required  to  give  to  the  person 
paying  the  same  a  receipt  for  such  money,  and  such  receipt  shall  be  an 
effectual  discharge  for  the  money  therein  respectively  expressed  to  have 
been  received. 

XLIX.  And  be  it  enacted,  that  where  in  any  suit  commenced  or  to 
be  commenced  in  the  Court  of  Chancery  it  shall  be  made  to  appear  to 
the  court  by  affidavit  that  diligent  search  and  inquiry  has  been  made 
after  any  person  made  a  defendant,  who  is  only  a  trustee,  to  serve  him 
with  the  process  of  the  court,  and  that  he  cannot  be  found,  it  shall  be 

{x)  See  now  16  &  IT  Vict.  c.  13?,  ss.  28,  32.  Re  Davenport's  Charitj,  4  De 
Gex,  Mac.  &  Gor.  839  ;  and  see  p.  718,  supra. 

{y)  This  section  is  a  re-enactment  almost  verbatim  of  section  3  of  the  Escheat 
and  Forfeiture  Act.  See  now  section  8  of  the  Extension  Act,  giving  the  court 
power  to  appoint  new  trustees  in  the  place  of  persons  convicted  of  felony. 

(z)  This  is  a  re-enactment  of  sect  5,  of  the  Escheat  and  Forfeiture  Act. 


TRUSTEE    ACT,    185  0.  701 

lawful  for  the  said  court  to  hear  and  determine  such  cause,  and  to  make 
such  absolute  decree  therein  against  every  person  who  shall  appear  to 
them  to  be  only  a  trustee,  and  not  otherwise  concerned  in  interest  in  the 
matter  in  question,  in  such  and  the  same  manner  as  if  such  trustee  had 
been  duly  served  with  the  process  of  the  court,  and  had  appeared  and 
filed  his  answer  thereto,  and  had  also  appeared  by  his  counsel  and  solici- 
tor at  the  hearing  of  such  cause :  Provided  always,  that  no  such  decree 
shall  bind,  affect,  or  in  anywise  prejudice  any  person  against  whom  the 
same  shall  be  made,  without  service  of  process  upon  him  as  aforesaid, 
his  heirs,  executors,  or  administrators,  for  or  in  respect  of  any  estate, 
right,  or  interest  which  such  person  shall  have  at  the  time  of  making 
su^ch  decree  for  his  own  use  and  benefit,  or  otherwise  than  as  a  trustee  as 
aforesaid. 

L.  And  be  it  enacted,  that  when  any  person  shall,  under  the  provi- 
sions of  this  act,  apply  to  one  of  the  masters  of  the  Court  of  Chancery 
in  the  first  instance,  and  adduce  evidence,  for  the  purpose  of  obtaining 
the  certificate  of  such  master  as  a  foundation  for  an  order  of  the  said 
lord  chancellor  intrusted  as  aforesaid,  or  the  said  court  of  chancery,  it 
shall  be  lawful  for  the  said  master  to  order  service  of  such  application 
upon  any  person,  or  to  dismiss  such  application,  and  to  direct  that  the 
costs  of  any  persons  consequent  thereon  shall  be  paid  by  the  person 
making  the  same ;  and  all  orders  of  the  master  under  this  act  shall  be 
enforced  by  the  same  process  as  orders  of  the  court  made  in  any  suit 
against  a  party  thereto. 

LI.  And  be  it  enacted,  that  the  lord  chancellor  intrusted  as  aforesaid, 
and  the  Court  of  Chancery,  may  order  the  costs  and  expenses  of  and 
relating  to  the  petitions,  orders,  directions,  conveyances,  assignments, 
and  transfers  to  be  made  in  pursuance  of  this  act,  or  any  of  pgQ;^-! 
*them,  to  be  paid  and  raised  out  of  or  from  the  lands  or  per-  L  J 
sonal  estate,  or  the  rents  or  produce  thereof,  in  respect  of  which  the  same 
respectively  shall  be  made,  or  in  such  manner  as  the  said  lord  chancel- 
lor or  court  shall  think  proper.(a) 

LII.  And  be  it  enacted,  that  upon  any  petition  being  presented  under 
this  act  to  the  lord  chancellor  intrusted  as  aforesaid,  concerning  a  person 
of  unsound  mind,  it  shall  be  lawful  for  the  said  lord  chancellor,  should 
he  so  think  fit,  to  direct  that  a  commission  in  the  nature  of  a  writ  cle 
lunatico  inquirendo  shall  issue  concerning  such  person,  and  to  postpone 

(a)  See,  as  to  the  costs  of  an  infant  trustee,  Ex  parte  Cant,  10  Vesey,  554 :  and 
as  to  those  of  an  infant  mortgagee,  Ex  parte  Ommaney,  10  Sim.  298  ;  Miltown  v. 
Trimbleston,  1  Fl.  &  Kelley,  328  :  the  first  case  decided  under  the  7  Anne,  c.  19, 
the  two  latter  under  the  1  W.  4,  c.  60. 

As  to  the  costs  of  a  lunatic  trustee  or  mortgage,  see  note  (t),  p.  883,  supra. 

The  costs  of  applications  for  the  appointment  of  new  trustees  come  out  of  the 
corpus  of  the  trust  fund.  Re  Fellows'  Settlement,  1  Jur.  N.  S.  62  ;  Re  Fulham,  15 
Jur  69-  Ex  parte  Davies,  16  Jur.  882.  And  in  the  last-named  case  the  court, 
though  after  some  hesitation,  declared  that  certain  costs  incurred  under  the  act 
should,  with  interest  at  4  per  cent.,  form  a  charge  on  the  inheritance.  In  Re 
Primrose's  Settlement,  5  Weekly  Rep.  508,  the  master  of  the  rolls  was  of  opinion, 
that  he  had  no  jurisdiction  under  this  act  to  order  respondents  to  pay  costs.  But 
compare  the  decision  in  Re  Woodburn,  5  Weekly  Rep.  649,  under  the  Trustee  Re- 
lief Act. 


702 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


makino-  any  order  upon  such  petition  until  a  return  shall  have  been  made 
to  such  commission. 

LIII.  And  be  it  enacted,  that  upon  any  petition  under  this  act  being 
presented  to  the  lord  chancellor  intrusted  as  aforesaid,  or  to  the  Court 
of  Chancery,  it  shall  be  lawful  for  the  said  lord  chancellor,  or  the  said 
Court  of  Chancery,  to  postpone  making  any  order  upon  such  petition 
until  the  right  of  the  petitioner  or  petitioners  shall  have  been  declared 
in  a  suit  duly  instituted  for  that  purpose. (Z^) 

LIV.  And  be  it  enacted,  that  the  powers  and  authorities  given  by 
this  act  to  the  Court  of  Chancery  in  England  shall  extend  to  all  lands 
and  personal  estate  within  the  dominions,  plantations,  and  colonies  be- 
longing to  her  majesty  (except  Scotland.) 

LV.  And  be  it  enacted,  that  the  powers  and  authorities  given  by 
this  act  to  the  Court  of  Chancery  in  England  shall  and  may  be  exer- 
cised in  like  manner  and  are  hereby  given  and  extended  to  the  Court 
of  Chancery  in  Ireland  with  respect  to  all  lands  and  personal  estate  in 
Ireland. 

LVI.  And  be  it  enacted,  that  the  powers  and  authorities  given  by 
this  act  to  the  lord  chancellor  of  Great  Britain  intrusted  as  aforesaid, 
shall  extend  to  all  lands  and  personal  estate  within  any  of  the  dominions, 
plantations,  and  colonies  belonging  to  her  majesty  (except  Scotland  and 
Ireland. Vc) 

r*Qn9n  *LVII.  And  be  it  enacted,  that  the  powers  and  authorities 
L  J  given  by  this  act  to  the  lord  chancellor  of  Great  Britain  intrust- 
ed as  aforesaid,  shall  and  may  be  exercised  in  like  manner  by  and  are 
hereby  given  to  the  lord  chancellor  of  Ireland  intrusted  as  aforesaid,  with 
respect  to  all  lands  and  personal  estate  in  Ireland. 

LVIII.  And  be  it  enacted,  that  in  citing  this  act  and  other  acts  of 
parliament,  and  in  legal  instruments  and  in  legal  proceedings,  it  shall  be 
sufficient  to  use  the  expression  "  The  Trustee  Act,  1850. '^ 

LIX.  And  be  it  enacted,  that  this  act  shall  come  into  operation  on  the 
first  day  of  November,  one  thousand  eight  hundred  and  fifty. 

LX.  And  be  it  enacted,  that  this  act  may  be  amended  or  repealed  by 
any  act  to  be  passed  in  this  session  of  parliament. 

(b)  Thus  a  suit  was  directed  where  a  father  purchased  in  the  name  of  his  son, 
but  without  intending  an  advancement,  and  the  court  refused  to  declare  the  son, 
who  was  a  lunatic,  a  trustee  for  his  father  without  a  suit.  Collinson  v.  Collinsou, 
3  De  Gex,  Mac.  &  Gor.  409 ;  and  see  Re  Burt,  9  Hare,  289. 

(c)  The  Lord  Chancellor  of  Great  Britain,  sitting  in  lunacy,  has  no  jurisdiction 
over  lands  in  Ireland.     Re  Davies,  3  Mae.  k  Gor.  278. 


TRUSTEE   EXTEISIOJf   ACT,  1852. 


15°  &  16°  Victoria,  Cap.  55. 

An  act  to  extend  the  Provisions  of  "  The  Trustee  Act,  1850. 
[30«A  June,  1852.] 

Whereas  it  is  expedient  to  extend  the  provisions  of  the  Trustee 
Act,  1850  :  Be  it  therefore  enacted  by  the  queen's  most  excellent  majesty, 
by  and  with  the  advice  and  consent  of  the  lords  spiritual  and  temporal, 
and  commons,  in  this  present  parliament  assembled,  and  by  the  authori- 
ty of  the  same. 

I.  That  when  any  decree  or  order  shall  have  been  madefa)  by  any 
court  of  equity  directing  the  sale  of  any  lands  for  any  purpose  what- 
ever,(6)  every  person  seised  or  possessed  of  such  land,  or  entitled  to  a 
contingent  right  therein,  being  a  party  to  the  suit  or  proceeding  in  which 
such  decree  or  order  shall  have  been  made,  and  bound  thereby,  or  being 
otherwise  bound  by  such  decree  or  order,  shall  be  deemed  to  be  so  seised 
or  possessed  or  entitled  (as  the  case  may  be)  upon  a  trust  within  the 
meaning  of  the  Trustee  Act,  1850 ;  and  in  every  such  case  it  shall  be 
lawful  for  the  Court  of  Chancery,  if  the  said  court  shall  think  it  expedient 
for  the  purpose  of  carrying  such  sale  into  eflPect,  to  make  an  order  vesting 
such  lands  or  any  part  thereof,  for  such  estate  as  the  court  shall  think 
fit,  either  in  any  purchaser(c)  or  in  such  *other  person  as  the  r^qn  i -i 
court  shall  direct ;  and  every  such  order  shall  have  the  same  effect  L  -J 
as  if  such  person  so  seised  or  possessed  or  entitled  had  been  free  from 
all  disability,  and  had  duly  executed  all  proper  conveyances  and  assign- 
ments of  such  lands  for  such  estate. 

[a)  A  decree  made  before  the  passing  of  this  act  is  within  the  operation  of  this 
clause,  Wake  v.  Wake,  IT  Jur.  ^45. 

{b)  The  30th  section  of  the  Trustee  Act,  1850,  applied  only  to  decrees  directing 
a  sale  for  the  payment  o( debts  ;  and  consequently  where  the  decree  for  sale  had  been 
made  in  order  to  provide  a  fund  available  for  payment  of  costs,  the  court  had  no 
power  to  make  a  vesting  order,  Weston  v.  Filer,  5  De  Gex  &  Sm.  608.  This  enact- 
ment remedies  the  inconvenience. 

(c)  Where  lands  are  sold  in  several  lots  to  different  purchasers,  the  purchasers  of 
the  different  lots  may  join  in  one  petition,  Rowley  v.  Adams,  14Beav.  130.  The 
purchaser  is  the  proper  person  to  apply,  Ayles  v.  Cox,  17  Beav.  584  ;  but  the  plain- 
tiffs and  purchaser  may  join  if  they  think  fit,  Rowley  v.  Adams,  ubi  supra. 

The  costs  of  the  petition  fiill  upon  the  vendor,  Ayles  v.  Cox,  ubi  supra. 


704 


LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 


II.  That  sections  numbered  seventeen  and  eighteen  in  the  queen's 
printer's  copy  of  the  Trustee  Act,  1850,  be  repealed  ;  and  in  every  case 
where  any  person  is  or  shall  be  jointly  or  solely  seised  or  possessed  of 
any  lands  or  entitled  to  a  contingent  right  therein  upon  any  trust,  and 
a  demand  shall  have  been  made  upon  such  trustee  by  a  person  entitled 
to  require  a  conveyance  or  assignment  of  such  lands,  or  a  duly  authorized 
agent  of  such  last-mentioned  person,  requiring  such  trustee  to  convey  or 
assign  the  same,  or  to  release  such  contingent  right,  it  shall  be  lawful  for 
the  Court  of  Chancery,  if  the  said  court  shall  be  satisfied  that  such  trus- 
tee has  wilfully  refused  or  neglected  to  convey  or  assign  the  said  lands 
for  the  space  of  twenty-eight  days  after  such  demand,  to  make  an  order 
vesting  such  lands  in  such  person,  in  such  manner  and  for  such  a  state 
as  the  court  shall  direct,  or  releasing  such  contingent  right  in  such 
manner  as  the  court  shall  direct;  and  the  said  order  shall  have  the  same 
effect  as  if  the  trustee  had  duly  executed  a  conveyance  or  assignment  of 
the  lands,  or  a  release  of  such  right,  in  the  same  manner  and  for  the 
same  estate. (cZ) 

III.  That  when  any  infant  shall  be  solely  entitled  to  any  stock  upon 
any  trust,  it  shall  be  lawful  for  the  Court  of  Chancery  to  make  an  order 
vesting  in  any  person  or  persons  the  right  to  transfer  such  stock,  or  to 
receive  the  dividends  or  income  thereof;  and  when  any  infant  shall  be 
entitled  jointly  with  any  other  person  or  persons  to  any  stock  upon  any 
trust,  it  shall  be  lawful  for  the  said  court  to  make  an  order  vesting  the 
right  to  transfer  such  stock,  or  to  receive  the  dividends  or  income  thereof, 
either  in  the  person  or  persons  conjointly  entitled  with  the  infant,  or  in 
him  or  them  together  with  any  other  person  or  persons  the  said  court 
may  appoint,  (e) 

IV.  That  where  any  person  shall  neglect  or  refuse  to  transfer  any 
r*Qnf^i  ^^^'Ock  or  to  receive  the  dividends  or  income  thereof,  or  to  sue 
L  -I  for  or  recover  any  chose  in  action,  or  any  interest  in  respect 
thereof,  for  the  space  of  twenty-eight  days  next  after  an  order  of  the 
Court  of  Chancery  for  that  purpose  shall  have  been  served  upon  him,(/) 
it  shall  be  lawful  for  the  Court  of  Chancery  to  make  an  order  vesting  all 
the  right  of  such  person  to  transfer  such  stock,  or  to  receive  the  dividends 
or  income  thereof,  or  to  sue  for  and  recover  such  chose  in  action,  or  any 
interest  in  respect  thereof,  in  such  person  or  persons  as  the  said  court 
may  appoint. 

V.  When  any  stock  shall  be  standing  in  the  sole  name  of  a  deceased 

{d)  Under  the  Htli  &  18th  sections  of  the  Trustee  Act,  1850,  the  power  of  the 
court  arose  only  upon  written  refusal  to  convey,  or  neglect  or  refusal  so  to  do  after 
tender  of  a  proper  deed.  The  former  contingency  was  of  rare  occurrence,  and  con- 
siderable difficulty  was  often  experienced  in  bringing  the  case  within  the  terms 
of  the  latter.  See  as  to  copyholds,  Rowley  v.  Adams,  14  Beav.  130.  See  notes  on 
section  23  of  Trustee  Act,  1850,  and  note  (a),  p.  837,  supra. 

(e)  In  Cramer  v.  Cramer,  5  De  Gex  &  Sm.  312,  Vice-Chancellor  Parker  held 
that  the  Trustee  Act,  1850,  having  conferred  no  general  power  in  the  case  of  an 
infant  trustee  of  stock,  the  court  had  no  authority  to  make  a  vesting  order  with 
regard  to  stock  held  by  an  inf\\nt  trustee  out  of  the  Jurisdiction.  Hence  this  enact- 
ment. 

(/)  See  the  case  of  Mackenzie  v.  Mackenzie,  5  De  Gex  &  Sm.  338  ;  and  of  Re 
Hartnall,  5  De  Gex  &  Sm.  HI  ;  the  decisions  in  which  probably  suggested  this 
clause. 


TRUSTEE    EXTENSION    ACT,    185  2.  705 

person,  and  his  personal  representative  shall  refuse  or  neglect  to  trans- 
fer such  stock  or  receive  the  dividends  or  income  thereof  for  the  space 
of  twenty-eight  days  next  after  an  order  of  the  Court  of  Chancery  for 
that  purpose  shall  have  been  served  upon  him,  it  shall  be  lawful  for  the 
Court  of  Chancery  to  make  an  order  vesting  the  right  to  transfer  such 
stock,  or  to  receive  the  dividends  or  income  thereof,  in  any  person  or 
persons  whom  the  said  court  may  appoint 

VI.  When  any  order  being  or  purporting  to  be  under  this  act,  or  under 
the  Trustee  Act,  1850,  shall  be  made  by  the  lord  chancellor  intrusted 
as  aforesaid,  or  by  the  Court  of  Chancery,  vesting  the  right  to  any  stock, 
or  vesting  the  right  to  transfer  any  stock,  or  vesting  the  right  to  call  for 
the  transfer  of  any  stock,  in  any  person  or  persons,  in  every  such  case  the 
legal  right  to  transfer  such  stock  shall  vest  accordingly  ;(^)  and  the  person 
or  persons  so  appointed  shall  be  authorized  and  empowered  to  execute  all 
deeds  and  powers  of  attorney,  and  to  perform  all  acts  relating  to  the  trans- 
fer of  such  stock  into  his  or  their  own  name  or  names,  or  otherwise,  to  the 
extent  and  in  conformity  with  the  terms  of  the  order ;  and  the  Bank  of 
England,  and  all  companies  and  associations  whatever,  and  all  persons, 
shall  be  equally  bound  and  compellable  to  comply  with  the  requisitions  of 
such  person  or  persons  so  appelated  as  aforesaid,  to  the  extent  and  in 
conformity  with  the  terms  of  such  order,  as  the  said  Bank  of  England,  or 
such  companies,  associations,  or  persons  would  have  been  bound  and  com- 
pellable to  comply  with  the  requisitions  of  the  person  in  whose  place  such 
appointment  shall  have  been  made. 

VII.  That  every  order  made  or  to  be  made,  being  or  purport-  n^jcQAp-i 
ing  *to  be  made  under  this  or  the  Trustee  Act,  1850,  by  the  L  J 
lord  chancellor  intrusted  as  aforesaid,  or  by  the  Court  of  Chancery,  and 
duly  passed  and  entered,  shall  be  a  complete  indemnity  to  the  bank  of 
England,  and  all  companies  and  associations  whatsoever,  and  all  persons, 
for  any  act  done  pursuant  thereto  ;  and  it  shall  not  be  necessary  for  the 
bank  of  England,  or  such  company  or  association  or  person,  to  inquire 
concerning  the  propriety  of  such  order,  or  whether  the  lord  chancellor 
intrusted,  as  aforesaid,  or  the  Court  of  Chancery  had  jurisdiction  to  make 
the  same. 

VIII.  That  when  any  person  is  or  shall  be  jointly  or  solely  seised  or 
possessed  of  any  lauds  or  entitled  to  any  stock  upon  any  trust,  and  such 
person  has  been  or  shall  be  convicted  of  felony,  it  shall  be  lawful  for  the 
Court  of  Chancery,  upon  proof  of  such  conviction,  to  appoint  any  person 
to  be  a  trustee  in  the  place  of  such  convict,  and  to  make  an  order  for 
vesting  such  lands,  or  the  right  to  transfer  such  stock,  and  to  receive 
the  dividends  or  income  thereof,  in  such  person  to  be  so  appointed  trus- 
tee ;  and  such  order  shall  have  the  same  effect  as  to  lands  as  if  the  con- 
vict trustee  had  been  free  from  any  disability  and  had  duly  executed  a 
conveyance  or  assignment  of  his  estate  and  interest  in  the  same. 

IX.  That  in  all  cases  where  it  shall  be  expedient  to  appoint  a  new 
trustee,  and  it  shall  be  found  inexpedient,  difficult,  or  impracticable  so  to 
do  without  the  assistance  of  the  Court  of  Chancery,  it  shall  be  lawful  for 

(ff)  See  the  decision  in  Smyth's  Settlement,  4  De  Gex  &  Smale,  499,  which 
doubtless  was  the  cause  of  this  and  the  next  following  section. 


706 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


the  said  court  to  make  an  order  appointing  a  new  trustee  or  new  trustees, 
whether  there  be  any  existing  trustee  or  not  at  the  time  of  making  such 
order.  (7i) 

X.  In  every  case  in  which  the  lord  chancellor  intrusted  as  aforesaid 
has  jurisdiction  under  this  act,  or  the  Trustee  Act,  1850,  to  order  a  con- 
veyance or  transfer  of  land  or  stock,  or  to  make  a  vesting  order,  it  shall 
be  lawful  for  him  also  to  make  an  order  appointing  a  new  trustee  or  new 
trustees,  in  like  manner  as  the  Court  of  Chancery  may  do  in  like  cases, 
without  its  being  necessary  that  the  order  should  be  made  in  chancery 
as  well  as  in  lunacy,  or  be  passed  and  entered  by  the  registrar  of  the 
Court  of  Chancery. 

XI.  That  all  the  jurisdiction  conferred  by  this  act(i)  on  the  lord 
chancellor,  intrusted  by  virtue  of  the  queen's  sign  manual  with  the  care 

of  the  persons  and  estates  of  lunatics,  shall  and  may  be  bad, 
L  '  J  *exercised,  and  performed  by  the  person  or  persons  for  the  time 
being  intrusted  as  aforesaid. 

XII.  That  this  act  shall  be  read  and  construed  according  to  the  defi- 
nitions  and  interpretations  contained  in  the  second  section  of  the  Trustee 
Act,  1850,  and  the  provisions  of  the  said  last-mentioned  act  (except  so 
far  as  the  same  are  altered  by  or  inconsistent  with  this  act)  shall  extend 
and  apply  to  the  cases  provided  for  by  this  act,  in  the  same  way  as  if 
this  act  had  been  incorporated  with  and  had  formed  part  of  the  said 
Trustee  Act,  1850. 

XIII.  That  every  order  to  be  made  under  the  Trustee  Act,  1850,  or 
this  act,  which  shall  have  the  eifect  of  a  conveyance  or  assignment  of 
any  lands,  or  a  transfer  of  any  such  stock  as  can  only  be  transferred  by 
stamped  deed,  shall  be  chargeable  with  the  like  amount  of  stamp  duty 
as  it  would  have  been  chargeable  with  if  it  had  been  a  deed  executed  by 
the  person  or  persons  seised  or  possessed  of  such  lands,  or  entitled  to 
such  stock;  and  every  such  order  shall  be  duly  stamped  for  denoting  the 
payment  of  the  said  duty. 

(h)  See  note  (p),  p.  895,  supra,  as  to  the  doubt  ^hich  led  to  this  enactment. 

(0  See  Re  Waugh's  Trust,  2  De  Gex,  Mac.  &  Gor.  279.  Re  Pattinson,  21  L.  J. 
Ch.  280.  The  doubts  there  raised,  were,  as  respects  the  jurisdiction  conferred  by 
the  Trustee  Act,  1850,  removed  by  the  15  &  16  Vict.  c.  87,  s.  15,  (date  of  Royal 
Assent,  1st  July,  1852). 


APPENDIX. 


No.  I. 

Strode  v.  Winchester.     Supra,  p.  71. 

The  following  is  a  brief  note  of  the  case  from  the  Registrar's  Book : 
Ferdinando  John  Paris,  being  desirous  of  leaving  his  fortune  to  Lucy 
Naomi  Strode,  but  without  the  knowledge  of  her  husband,  who  had 
married  her  against  the  wishes  of  the  testator,  fixed  upon  Elizabeth 
Gough,  the  mother  of  the  said  Mrs.  Strode,  to  be  the  sole  trustee,  and 
acquainted  lier  therewith,  and  received  a  solemn  promise  from  her,  that 
she  would  take  care  of  every  thing  for  the  separate  use  of  her  daughter. 
Paris,  by  his  will,  gave  all  his  real  and  personal  estate  to  Mrs.  Gough, 
and  made  her  sole  executrix ;  and  by  a  paper  writing,  which  bore  even 
date  with  and  accompanied  the  will,  he  addressed  Mrs.  Gough  as  follows : 
— "I  have  given  you  the  whole  of  what  I  have  in  the  world,  and  I  wish 
I  had  more  to  give  in  the  same  way.  You  know  the  unhappy  reason 
why  I  could  not  leave  you  a  partner  in  the  donation,  but  I  greatly  trust 
you  will  answer  my  often  declared  design  and  intention,  and  therefore 
would  not  fetter  you  with  any  trust,  nor  with  any  co-executor  ;  and  I  beg 
you  to  answer  my  purpose  most  effectually,  in  full  opinion  whereof  I  have 
made  my  will  in  this  manner,  relying  on  your  fidelity  therein.  One  of 
my  motives  to  this  disposition  is,  the  promise  I  made  to  my  late  wife  in 
her  last  moments  to  take  the  best  care  I  could  of  you  and  yours.  I 
have  other  motives  also,  from  your  own  great  care  and  trouble  taken  for 
me ;  and,  lastly,  the  great  and  true  regard  which  I  have  for  yourself  and 
that  dear  girl,  who  was  my  wife's  favorite.  Do  not  disappoint  my  expec- 
tation of  you."  A  mass  of  evidence  was  read  relative  to  the  intentions 
of  the  testator,  and  the  conduct  and  the  declarations  of  Mrs.  Gough,  and 
the  court  decreed,  '<that  by  virtue  of  the  last  will  of  the  testator,  and 
the  letter  accompanying  the  will,  and  the  evidence  in  the  cause,  the 
devisee  was  and  ought  to  be  deemed  a  trustee  of  the  real  and  personal 
estate,  for  the  separate  use  and  benefit  of  Mrs.  Strode." — Reg.  Lib. 
1766,  B.  fol.  515. 

No.  IL 
Abbot  V.  Lee.     Supra,  p.  189,  797. 
"  The  substance  of  the  plaintifi"'s  bill  appeared  to  be,  that  George 


708       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

Cuthbert,  the  testator,  having  issue  two  sons,  William  and  Edward,  and 
two  daughters,  Jane  and  Mary,  did,  about  May,  1681,  make  his 
[*^1^J  will,  and  therein,  amongst  other  things,  did  devise  to  his  daughter 
Jane  550/.,  and  to  his  daughter  Mary  the  like  sum  of  550/.,  and  directed 
that  those  sums  should  be  laid  out  by  his  executors  in  a  purchase  of 
lands,  at  the  discretion  of  his  executors,  within  one  year  after  his  decease, 
for  the  use  of  his  said  daughters  and  the  heirs  of  their  bodies  lawfully  to 
be  begotten ;  and  in  case  either  of  his  daughters  should  die  before  mar- 
riage,°that  then  150/.  of  her  money,  or  in  case  the  money  be  laid  out  in 
lands,  then  lands  of  the  value  of  150/.,  out  of  her  share  of  the  lands  so 
purchased,  should  go  to  the  surviving  sister,  and  the  other  400/.  to  his        | 
sons,  equally  to  be  divided  between  them  and  their  heirs;  and  the  said        | 
George  Cuthbert,  by  his  said  will,  did  also  devise  unto  his  said  sons  all 
the  lands  in  his  said  will  particularly  mentioned ;  and  in  case  his  sons 
died  without  issue,  then  he  devised  those  lands  to  his  daughters  and  the 
survivor  of  them  and  their  heirs ;  and  he  gave  the  use  of  his  household 
goods  to  his  wife,  and  after  her  decease  the  same  were  to  be  divided 
amongst  his  children,  at  the  discretion  of  his  executors;  and  of  his  will 
he  made  Jane  his  wife  (now  the  wife  of  William  Leach,)  and  the  de- 
fendant Lee,  executrix  and  executor,  in  trust  for  his  said  sons  and 
daughters.     That  after  his  decease,  the  executors  executed  the  will,  and 
possessed  themselves  of  the  real  and  personal  estate,  but  did  not  lay  out 
any  part  of  the  money  in  a  purchase  of  lands.     That  both  the  sons,  and 
Jane,  one  of  the  daughters,  died  in  their  minority  unmarried,  and  the 
plaintiff  married  Mary,  the  surviving  daughter,  who  also  died  without 
issue ;  and  the  plaintiff  took  out  letters  of  administration  to  her,  and 
thereby  became  entitled  to  her  legacy  of  550/.  and  to  150/.  of  Jane's 
legacy.     That  the  defendant  Cuthbert  pretends  that  he  is  entitled  to  all 
the  estate,  both  real  and  personal,  of  the  said  George  Cuthbert,  as  his 
next  heir-at-law,  by  the  words  of  the  said  will,  and  that  the  defendant 
Lee  ought  to  account  to  him,  and  not  to  the  plaintiff.     Wherefore,  to 
have  a  discovery  and  an  account  of  the  testator  Cuthbert's  estate,  and 
that  the  defendants,  the  executors,  may  account  for  and  pay  to  the  plain- 
tiff the  several  legacies  devised  to  the  said  Mary  by  the  will  of  the  said 
G.  Cuthbert,  and  the  plaintiff  be  relieved,  is  the  scope  of  the  bill. 
Whereto  the  counsel  for  the  defendant  William  Cuthbert  insisted  that 
the  defendant  William  Cuthbert  by  his  answer  confessed  the  will,  and 
that  the  testator's  sons  and  daughter  Jane  died  unmarried,  and  that 
Mary,  the  plaintiff's  wife,  died  without  issue,  and  he  believed  the  plain- 
tiff was  her  administrator,  but  not  entitled  to  her  legacy,  for  that  he  the 
said  defendant  was  entitled  to  her  legacy,  for  that  he  the  said  defendant 
is  entitled  to  the  1100/.  given  to  Jane  and  Mary,  he  being  heir  at  law  to 
the  testator  and  to  his  children;  and  that  if  the  1100/.  had  been  laid  out 
in  lands,  as  it  ought  to  have  been,  then  the  same  would  have  descended 
to  him,  and  that  therefore  he  claims  the  same,  but  submits  to  the  judg- 
ment of  the  court  whether  the  plaintiff  be  entitled  to  any  part  thereof. 
Whereupon,  and  upon  long  debate  of  the  matter,  and  hearing  of  what 
was  insisted  by  counsel  on  either  side,  and  upon  producing  of  an  order 
made  in  the  said  cause,  whereby  it  was  ordered  that  the  plaintiff  might 


APPENDIX.  709 

proceed  to  hear  the  cause  against  the  defendant  Lee  only  without  pre- 
judice in  regard  the  defendant  Leach  and  his  wife,  though  duly  served 
with  process  to  appear,  yet  had  not  appeared,  but  sat  in  contempt  to  a 
serjeant-at-anus,  and  were  insolvent  and  could  not  be  found,  the  court 
declared,  that  the  550?.  legacy  devised  to  Mary,  and  *150?.  of  r^g-j^-j^-i 
Jane's  legacy,  did  belong  unto  the  plaintiff  as  administrator  to  L  J 
his  wife,  and  that  the  defendant  Cuthbert  had  not  any  right  or  title  to 
the  same  as  heir-at-law  to  George  Cuthbert  or  his  children,  or  otherwise; 
and  doth  therefore  think  fit  and  so  order  and  decree,  that  the  defendant 
Lee  do  account,  &c.,  (the  usual  order,)  and  out  of  the  money  which  shall 
appear  to  be  in  the  said  defendant's  hands,  upon  such  account,  the  said 
defendant  is  hereby  ordered  and  decreed  to  pay  unto  the  said  plaintiff 
the  aforesaid  sums  of  550?.  and  150?.,  or  so  much  thereof  as  the  same 
shall  amount  unto." — Reg.  Lib.  1689^  A.  f.  177. 


No.  III. 
Cogan  V.  Stevens.     Supra,  p.  189. 

November  24th,  1835. 

Sir  Christopher  C.  Pepys,  master  of  the  rolls, — "  This  case  involves 
a  question  of  great  and  general  importance,  and  of  principles  which 
might  be  supposed  to  be  of  very  general  application ;  and  so  it  would 
appear  to  be  from  the  circumstance  of  several  cases  having  come  before 
me  since  the  argument  of  the  cause,  involving  the  same  question  ;  and 
yet  it  appears  I  am  called  on  to  give  the  first  judicial  opinion  on  the 
subject.  The  question  is  simply,  whether,  when  a  testator  directs 
money  to  be  invested  in  land  for  certain  purposes,  some  of  which  are 
lawful  and  take  eflFect,  but  others  fail  and  become  void,  the  property  so 
given,  after  satisfying  the  lawful  purposes,  belongs  to  the  next  of  kin  or 
to  the  heir  of  the  testator.  The  testator,  Lewis  Stevens,  by  his  will, 
dated  at  Lisbon,  11th  July,  1789,  after  describing  himself  as  a  native 
of  Exeter,  and  enumerating  the  particulars  of  his  property,  which  he 
stated  to  amount  to  100,000?.  sterling,  proceeds  thus: — 'As  to  the  dis- 
posal of  those  worldly  goods  which  I  leave  behind  me,  my  order  is,  that 
after  my  funeral  expenses  are  paid,  and  all  my  just  debts,  and  24,000 
milreis  to  my  dearly  beloved  wife,  Mary  Bryanna  Bulkely,  now  Stevens, 
that  the  sum  of  30,000?.  sterling  be  laid  out  immediately  by  my  exe- 
cutors hereunder  mentioned,  in  the  purchase  of  an  estate  or  estates  in 
the  county  of  Devon  or  Cornwall,  the  income  of  which  shall  belong  to 
my  widow  during  her  natural  life.  And  after  her  decease  the  said  in- 
come shall  belong  to  my  dear  brother  William,  or  his  children  lawfully 
begotten  ;  and  if  he  dies  without  children,  the  said  income  shall  belong 
to  my  brother  Jedediah  and  his  children  lawfully  begotten ;  and  if  he 
dies  without  issue,  then  this  income  shall  belong  to  my  brother  John 
James  and  his  children  lawfully  begotten ;  and  if  he  dies  without  chil- 
dren, then  this  income  shall  belong  to  my  dear  sister  Philadelphia  and 
her  children  lawfully  begstten  ;  and  if  she  dies  without  children,  then 


710       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

the  income  of  this  estate  or  estates,  which  shall  be  purchased  and  always 
run  in  my  name,  shall  be  employed  in  the  establishment  of  a  charity 
school  for  boys  in  the  city  of  Exeter,  for  the  purpose  of  teaching  them 
to  read,  write,  and  cypher,  and  foreign  languages,  which  boys  shall  be 
natives  of  the  counties  of  Devonshire  or  Cornwall.     And  I  hereby  order 
my  executors  to  purchase  this  estate  or  estates  in  my  name,  and  register 
the  same,  and  this  my  determination,  in  proper  places,  that  the  chamber 
of  Exeter  may  take  charge  thereof  in  default  of  the  regular  succession 
above-mentioned,  and  erect  the  school  as  hereby  directed,  which  school 
shall  be  *called  Stevens's  Charity  School ;   and  the  regulations 
[*912]  ^^^  .^g  establishment  I  leave  to  the  said  chamber  of  Exeter,  and 
my  cousins  Charles  and  Joseph  Lyne,  if  they  survive,  with  orders  to  set 
immediately  about  this  useful  establishment.'     He  then  gave  certain 
pecuniary  legacies,  and  the  residue  of  his  fortune  he  gave  and  bequeathed 
in  the  following  manner,  dividing  the  same  into  fifteen  parts.     He  gave 
three-fifteenths  to  his  brother  William,  three-fifteenths   to   Jedediah, 
three-fifteenths  to  John  James,  three-fifteenths  to  Philadelphia,  two- 
fifteenths  to  his  cousin  Charles  Lyne,  and  one-fifteenth  to  Joseph  Lyne. 
Then  after  the  above-mentioned  disposition  was  made,  they  were  to  re- 
ceive and  divide  as  the  money  came  in,  as  his  affairs  went  on  liquidating; 
and  he  nominated  his  executors,  his  brothers  AVilliam  and  Jedediah,  and 
his  cousin  Charles  Lyne,  or  in  default  of  either  of  his  said  brothers,  he 
nominated  his  brother  John  James,  and  in  default  of  his  cousin  Charles 
Lyne,  he  nominated  his  cousin  Joseph  Lyne;  and  he  declared  that  what 
he  left  should  be  divided  out  in  full,  as  it  was  liquidated ;  and  if  any  of 
the  executors  refused  taking  charge  of  the  executorship,  his  share  should 
be  forfeited  to  the  benefit  of  the  others ;  that  if  any  of  his  brothers  or 
sisters  should  die  before  him,  or  either  of  his  two  cousins  should  die 
before  him,  that  then  the  share  of  the  deceased  should  be  divided  among 
the  remaining  five  heirs  of  the  residue.     The  will  was  proved  by  Jede- 
diah Stevens  in  1795,  by  John  James  Stevens  in  1826,  and  afterwards 
by  Charles  Lyne,  who  took  the  name  of  Stevens,  and  is  now  the  per- 
sonal representative  of  the  testator.     The  30,000?.  never  was  laid  out  in 
the  purchase  of  land  :  it  was  invested  in  the  public  funds,  and  now  con- 
sists of  30,996?.  in  the  four  per  cents.,  of  which  fund  the  testator's 
widow  received  the  dividends  until  her  death,  which  took  place  in  1827, 
before  which  event  all  the  devisees  had  died  without  issue,  William  in 
18C3,  Jedediah  the  same  year,  Philadelphia  in  1824,  and  John  James 
in  1826,  so  that  upon  the  death  of  the  tenant  for  life  all  the  limitations 
as  to  the  estate  to  be  purchased  by  the  30,0007.  prior  to  the  direction  of 
establishing  the  school  at  Exeter  have  failed,  and  the  question  is,  who 
is  now  entitled  to  the  30,0007., — the  plaintiff,  who,  on  the  reference 
made  at  the  hearing  of  the  cause,  is  found  to  be  the  heir,  or  the  defen- 
dant, who  claims  it  as  part  of  the  personal  estate  of  the  testator  in  the 
event  which  has  happened?      Upon  i:>rinciple,  and  upon  analogy  to 
several  well-established  rules  in  equity,  it  would  appear  that  there  is 
no  doubt  as  to  the  proper  solution  of  this  question.     The  only  difficulty 
arises  from  some  few  cases  or  dicta  of  the  judges,  which  it  is  impossible 
to  reconcile  with  these  principles  or  these  rules;  and  some  of  the  cases  pro- 


APPENDIX,  711 

ceed  from  authority  so  high,  that,  if  not  absolutely  binding  on  the  court, 
they  ought  at  least  to  make  it  extremely  cautious  in  pronouncing  any  judg- 
ment inconsistent  with  them.  If  a  testator  devises  land  for  purposes 
altogether  illegal,  or  which  altogether  fail,  the  heir-at-law  takes  it  as  undis- 
posed of.  If  a  testator  gives  personal  property  for  purposes  altogether  illegal 
or  which  altogether  fail,  the  next  of  kin  takes  it,  as  in  the  case  of  an  intes- 
tacy, as  undisposed  of.  If  a  testator  devises  lands  for  purposes  which  are 
in  part  illegal,  or  which  partially  fail,  or  which  require  part  only  of  the 
lands  devised,  the  heir  takes  so  much  of  the  land  as  is  undisposed  of,  and 
which  was  destined  for  the  purpose,  which  by  law  cannot,  or  in  fact  does 
not,  take  effect,  and  so  much  as  is  not  required  for  the  purposes  of  the 
*will;  and  this  whether  the  land  be  actually  sold  or  not.  But  f-:i;Q-jq-| 
here,  it  is  said,  the  analogy  between  the  cases  of  land  and  money  l  J 
ceases,  and  that  if  a  testator  directs  money  to  be  laid  out  in  the  purchase 
of  land  for  purposes  which  are  partly  illegal,  or  which  partially  fail,  the 
next  of  kin  has  no  such  interest  in  the  money,  as  cannot  be  applied  to  the 
purposes  of  the  will;  but  if  there  are  purposes  legal  and  feasible  which  re- 
quire the  investment,  the  next  of  kin  are  excluded.  And  why  are  they 
to  be  so  excluded  ?  The  proposition  assumes  the  property  in  question, 
that  is,  a  portion  of  the  interest  in  the  property,  is  not  disposed  of  by  the 
will,  and  the  law  gives  to  the  next  of  kin  all  the  personalty  not  disposed  of. 
Is  it  from  any  incapacity  in  the  next  of  kin  to  take  property  which  exists 
in  the  form  of  land  ?  That  cannot  be.  In  equity  money  may  be  con- 
sidered as  land,  or  land  as  money,  according  to  circumstances.  A  man 
who  has  agreed  to  sell  his  land,  and  dies  intestate,  dies  seised  of  the 
land — his  property  exists  as  land — it  descends  as  land  to  the  heir.  The 
next  of  kin,  so  far  from  being  incapable  of  succeeding  to  property  that 
exists  in  the  form  of  land,  are  entitled  to  the  purchase-money  to  be  paid 
in  lieu  of  the  land  so  contracted  to  be  sold.  So  it  is  with  respect  to 
mortgages  in  fee,  of  which  the  mortgagee  dies  seised,  so  that  it  cannot 
be  that  his  next  of  kin  are  to  be  excluded,  because  the  property  exists 
in  the  form  of  land.  But  if  there  be  this  difficulty  in  stating  why  the  next 
of  kin  are  to  be  excluded,  there  is  at  least  as  much  difficulty  in  showing 
how  the  heir-at-law  may  be  entitled, 'as  regards  the  personalty.  The  pro- 
position assumes  the  property  was  personalty  of  the  testator  at  the  moment 
of  his  death,  and  there  was  no  seisin  in  him  of  any  thing  of  any  inheri- 
table quality.  Can  the  heir,  as  such,  inherit  what  never  was  inheri- 
table ?  Can  he  take  from  the  ancestor  what  the  ancestor  never  had?  It 
cannot  be  necessary  to  pursue  this  any  further.  If  the  heir  cannot  take, 
as  such,  there  is  then  one  other  character  in  which  he  can  take  :  he 
must  claim  under  the  will.  Doubtless  an  heir  may  take  as  devisee  in 
such  a  case,  but  then  he  must  show  from  the  will  itself  a  gift  in  his 
favour.  He  must  show  an  intention  that  in  the  events  which  have  hap- 
pened, the  heir  should  take ;  but  this  supposition  the  proposition  itself 
excludes,  because  it  assumes  an  intention  to  bestow  the  whole  benefit'on 
others ;  and  there  is  not  in  this  case,  or  in  the  case  supposed,  any  inten- 
tion expressed,  or  to  be  implied,  as  to  the  destination  of  the  property  in 
the  event  of  the  disposition  made  not  taking  effect.  If  indeed  an  heir 
claims  as  such,  he  is  not  defeated  by  the  intention  to  disinherit,  if  mani- 


712  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

festly  any  sucli  intention  for  any  reason  fails  to  take  effect.  I  am  now 
considering  the  claim  of  the  heir,  not  by  virtue  of  that  title  which  the 
law  gives  to  him  of  inheriting  all  the  property  not  effectually  given  away, 
but  as  a  devisee  under  the  will — but  as  the  person  designated  by  this 
testator  as  his  devisee,  and  in  the  event  that  has  happened.  If  the  tes- 
tator was  simply  to  direct  an  investment  of  a  sum  in  land,  and  declare 
no  trust  in  it,  the  heir  might  with  some  plausibility  contend  the  testator 
could  have  had  no  other  object  but  to  create  or  add  to  his  real  estate,  and 
that  it  might  be  enjoyed  in  that  line  by  whom  that  description  of  pro- 
perty is  by  law  inheritable.  But  it  is  obvious,  when  the  particular  pur- 
pose of  the  investment  is  declared,  and  the  particular  persons  are  speci- 
fied, as  alone  the  objects  of  the  testator's  disposition,  there  is  no  place  for 
any  such  contention.  If,  under  such  circumstances,  the  heir  were  to  take 
as  devisee,  he  would  take  in  defiance  of  all  the  rules  by  which  the  rights 
of  other  persons  claiming  as  devisees  are  regulated.  He  would  take  not 
only  without  any  words  *of  gift,  or  any  expression  of  intention 
L  -1  in  his  favour,  but  against  the  true  intent  that  others  and  not  he 
should  have  the  whole  interest  in  the  property.  If  the  devise  of  per- 
sonalty for  a  purpose,  part  of  which  fails,  be  to  be  considered  as  a  devise 
to  the  heir  to  the  extent  and  as  far  as  the  object  fails,  why  is  not  a  devise 
of  land  to  be  converted  into  money  for  purposes  which  partially  fail,  to  be 
considered  as  a  devise  to  the  next  of  kin  to  the  extent  of  the  failing  of 
the  first  object  of  the  gift  ?  The  same  expressions  may  be  used  in  both 
instances ;  and  yet  in  one  the  legal  successor  to  land  is  to  take,  yet  in 
the  other  the  legal  successor  to  money  is  to  be  excluded.  Under  the 
circumstances,  and  for  these  reasons,  had  the  case  come  before  me  to  be 
decided  on  principle  and  on  authority  independent  of  two  or  three  cases 
to  which  I  shall  particularly  refer,  I  should  not  have  felt  any  difficulty 
in  deciding  against  the  claim  of  the  heir.  It  remains  to  be  considered 
whether  I  am  bound  by  these  cases  to  decide  in  his  favour.  An  obser- 
vation was  made  by  Mr.  Pembcrton  at  the  hearing,  which  removes  much 
of  the  difficulty  which  would  otherwise  have  arisen  from  the  cases, 
namely,  that  no  authority  of  an  earlier  date  than  Ackroyd  v.  Smithson 
ought  to  have  much  weight  with  me.  The  force  of  this  observation  will 
be  felt,  on  adverting  to  what  Lord  Thurlow  says  in  deciding  that  case. 
He  says,  '  I  used  to  think,  when  it  was  necessary  for  any  purpose  of  the 
testator's  disposition  to  convert  the  land  into  money,  that  the  undisposed 
land  would  be  personalty.'  Now  this  is  precisely  the  argument  used  as 
to  the  conversion  of  money  into  land  by  Mr.  Hodgson  ;  and  here  I  can- 
not but  observe,  that  this  subject  of  conversion  has  given  rise  to  two  of 
the  ablest  arguments  ever  addressed  to  any  court — that  by  Lord  Eldon 
on  the  one  side  in  Ackroyd  v.  Smithson,  and  that  by  Mr.  Hodgson  on 
the  other,  in  the  present  case — an  argument,  which  has,  since  it  has 
been  delivered,  been  frequently  mentioned  at  the  bar  in  terms  of  the 
highest  praise,  and  in  which  I  gladly  avail  myself  of  this  opportunity  to 
express  my  entire  concurrence.  In  that  argument  it  was  necessarily 
admitted,  if  all  the  purposes  of  a  devise  failed,  the  whole  belongs  to  the 
heir  (^qu.  next  of  kin.)  But  it  was  contended,  that  if  the  purposes  are 
to  be  in  part  executed,  and  so  that  the  right  to  have  such  an  investment 


APPENDIX.  713 

of  money  in  land  effectually  existed  in  any  one  to  answer  such  partial 
purpose,  that  the  land  so  purchased,  after  answering  such  partial  purpose, 
belongs  to  the  heir.     So  thought  Lord  Thurlow,  as  to  lands  directed  to 
be  sold,  before  the  argument  in  Ackroyd  v.  Smithson.     No  wonder, 
then,  that  there  should  be  found  before  that  time  traces  of  authority  in 
favour  of  the  heir's   claim   to  money,   as  there  was  of  the  next   of 
kin's  claim  to  land  :    but  the  exclusion  of  the  latter  is  now  too  well 
settled  to  be  disputed,  and  the  argument  for  the  heir  rests  on  a  sup- 
posed difference  between  the  two.     But  no  such  difference  was  sup- 
posed to  exist  before  Ackroyd  v.  Smithson :  why  then  should  it  exist 
now  ?     If  there  be  any  substantial  difference  in  principle,  let  it  pre- 
vail, but  if  in  principle  there  be  no  distinction,  are  not  the  decisions^ 
in  Ackroyd  v.  Smithson  and  the  subsequent  cases,  of  higher  authority 
than  any  decision  which  may  have  taken  place  before  the  principle  was 
so  thoroughly  discussed  and  established  as  it  was  in  that  case  ?     In 
deciding  in  favour  of  the  next  of  kin,  I  am  following  the  principle  of 
Ackroyd  v.  Smithson,  and  maintaining  that  uniformity  of  decision  as  to 
the  conversion  of  land  into  money,  and  of  money  into  land,  which  was 
supposed  to  exist  before  that  time.     The  case  of  Lechmere  v.   Lord 
Carlisle(a)  was  cited  for  the  heir ;  but  this  and  all  other  cases  in  which 
*the  conversion  was  in  the  lifetime  of  the  testator,  I  consider  as  ^^q,  r-. 
not  bearing  upon  the  case.     Indeed,  in  one  view,  these  cases  may  L         J 
be  thought  to  bear  against  the  claim  of  the  heir.      They  proceed  on  this 
— that  whereas,  by  the  obligation  to  convert  money  into  land  in  the  life- 
time of  the  settlor,  the  money  had  become  land  in  the  ancestoi*,  whenever 
the  property  was  so  situated  the  heir  was  held  entitled  to  it.     In  the 
present  case,  the  heir  claims  that  which  unxjuestionably  was  personalty 
at  the  moment  of  the  death  of  the  ancestor.     Of  the  other  cases  cited  for 
the  heir,  some  were  in  support  of  his  right  as  such  claiming  by  inheri- 
tance, others  in  support  of  his  claim  as  devisee.     I  will  consider  the  latter 
class  first.      Smith  v.  Claxton,(6)  which  does  not  appear  to  me  to  have 
much  application.     There  land  was  directed  to  be  sold  for  purposes,  some 
of  which  failed  :  it  was  decided  that  the  heir  took  what  was  not  required 
for  the  purposes  of  the  will ;  and  the  only  question  was,  whether  he  took 
it  as  money  or  as  land.     This  has  no  bearing  on  the  question,  whether 
in  this  case  the  heir  or  the  next  of  kin  of  the  testator  are  entitled.     There 
the  observations  of  Sir  John  Leach  may  be  material,  when  some  other 
of  his  decisions  are  to  be  observed  upon  hereafter.     He  says,  '  The  heir- 
at-law  is  entitled  because  the  real  estate  was  land  at  the  devisor's  death, 
and  this  part  of  the  produce  is  an  interest  in  that  land  not  effectually 
devised,  and  which  therefore  descends  to  the  heir.     It  is  for  this  reason 
that  the  produce  of  an  estate  which  the  devisor  directs  to  be  sold  can 
never  be  strictly  part  of  his  personal  estate.     If  a  devisor  directs  such 
produce  to  be  paid  to  his  executors,  and  applied  as  part  of  his  personal 
estate,  the  executors  take  it  as  devisees.'     Amphlett  v.  Parke(c)  came 
before  the  same  learned  judge  first.     He  thought  the  case  came  within 
the  authority  of  Durour  v.  Motteux,(cZ)  and  Mallabar  v.  Mallabar,(e)  and 

(a)  3  P.  W.  211.  (b)  4  Madd.  484.  (c)  1  Sim.  2Y5. 

(d)  1  Ves.  390.  (e)  Cas.  t.  Talb.  78. 

May,  1858.— 46 


"14       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

expressed  his  regret  he  was  there  bouad  to  decide,  that  in  that  case,  as 
the  real  estate  was  directed  to  be  sold,  and  the  proceeds  were  directed  to 
he  taken  as  part  of  the  personal  estate,  and  to  be  applied,  together  with 
his  personal  estate,  in  paying  personal  legacies,  a  gift  of  the  residue  of 
the  personal  estate  passed,  by  the  death  of  the  legatee,  a  legacy  arising 
from  the  real  estate.     He  says,  'it  is  only  from  deference  to  these  two 
cases  that  I  arrive  at  the  conclusion  in  this  case,  that  the  testatrix  had 
in  her  view  the  improbable  intention,  that  the  moneys  arising  from  the 
sale  of  the  real  estate  should,  for  purposes  not  foreseen  by  her,  have  the 
same  quality  as  if  at  her  death  they  had  been  part  of  her  personal  estate.' 
Sir  John  Leach  adhered  to  this  opinion  when  the  case  was  brought  before 
him  in  1827,  as  reported  4  Russell,  75 :  but  Lord  Brougham  reversed  this 
decree,  and  decided  in  favour  of  the  heir.     Whatever  may  be  the  right 
decision  in  Amphlett  v.  Parke,  the  circumstances  are  so  different  from 
the  present  case,  that  it  cannot  be  considered  as  bearing  upon  it.     In 
that  case  the  question  was,  whether  the  proceeds  of  the  real  estate,  which 
were  destined  to  the  lapsed  legacies,  passed  under  the  residuary  clause. 
In  the  present  case  there  is  no  residuary  clause,  but  the  heir  claims  under 
a  direction  to  purchase  land  for  purposes  which  fail.     Phillips  v.  Phil- 
lips(/)  comes  nearest  to  the  present.     In  that  case  there  was  a  devise  of 
land  for  sale  and  a  direction  that  the  proceeds  should  be  deemed  to  be  part 
of  the  personal  estate,  and  should  be  subject  to  the  disposition  afterwards 
made  of  the  personal  estate.     The  proceeds  of  the  sale  and  the  personal 
*estate  were  then  given  to  trustees  to  pay  the  debts  and  legacies, 
L         J  and  the  residue  of  the  proceeds  and  of  the  personal  estate  was  to 
be  divided  into  fifths,  to  be  paid  to  five  residuary  legatees.     The  death 
of  one  of  them  occasioned,a  lapse  as  to  one  fifth.     The  question  was, 
whether  so  much  of  it  as  arose  from  the  proceeds  of  the  land  belonged 
to  the  heir  or  next  of  kin.     Sir  John  Leach  thought  the  next  of  kin 
entitled,  resting  his  judgment  on  cases  which  had  decided  that  the  resi- 
duary clause  might  pass  what  was  intended  for  legacies  which  lapsed  or 
could  not  be  carried  into  effect,  considering  the  provision  of  the  will 
before  him  as  amounting  to  a  direction,  that  the  proceeds  of  the  real 
estate  should  be  considered  as  personal,  not  only  for  the  purposes  of  the 
will,  but  for  purposes  never  contemplated  by  the  testator.     To  support 
that  decision  on  his  own  principles,  he  must  have  considered  the  will  as 
amounting  to  a  direction  that  the  proceeds  of  the  land  should  be  applied 
not  only  to  the  purposes  of  the  will,  but,  in  the  event  of  any  of  those 
purposes  failing,  for  the  next  of  kin.     It  forms  no  part  of  the  present 
purpose  to  consider  whether  that  case  can  be  supported  on  principle,  or 
on  any  preceding  authority.     It  is  sufficient  to  observe,  that  it  professes 
to  be  founded  on  a  direction,  that  the  proceeds  of  all  the  land  should  be 
deemed  to  be  part  of  his  personal  estate,  and  it  was  merely  a  construction 
put  on  such  a  bequest :  in  the  present  case  there  is  no  direction  that  the 
money  to  be  invested  should  be  deemed  to  be  part  of  the  testator's  real 
estate.     If  there  had  not  been  such  a  direction  in  Phillips  v.  Phillips 
Sir  John  Leach  states  that  the  rule  established  in  Ackroyd  v.  Smithson 
would  have  prevailed.     His  judgment,  therefore,  in  that  case  is  no  autho- 

(/)   1  M.  &  K.  G49. 


APPENDIX.  715 

rity  for  tlie  claim  of  the  lieir  in  tbis.  In  the  next  case  of  Jessopp  v. 
■Watson(^)  he  decided  in  favour  of  the  heir,  because  he  did  not  find  in 
the  will  an  expression  equivalent  to  a  direction  that  the  proceeds  of  the 
real  estate  should  for  all  purposes  be  considered  as  if  it  bad  been  personal 
estate  at  his  death.  On  principle,  therefore,  the  heir  has  not  the  autho- 
rity of  that  learned  judge,  because  it  cannot  be  said  in  this  will  there 
are  any  expressions  equivalent  to  a  direction  that  the  money  to  be  invested 
should  be  considered  as  if  it  had  been  real  estate  at  the  time  of  the  testa- 
tor's death.  In  Kobinson  v.  Knight(A)  the  testator  directed  land  to  be 
purchased,  and  that  it  should  be  settled,  after  a  previous  limitation,  to 
the  use  of  his  own  right  heirs,  and  the  question  was  between  the  heir-at 
law  and  the  residuary  devisee.  This  was  a  mere  question  of  construction 
between  the  parties,  each  of  whom  had  upon  the  will  sufficient  terms  of 
gift,  whereas  in  the  present  case  there  is  an  absence  of  any  terms  of  gift 
in  favour  of  either  of  the  contending  parties.  In  support  of  the  claim 
of  the  heir  as  such,  not  as  devisee,  the  case  of  Hayford  v.  Benlows(i') 
was  cited,  not  on  account  of  the  point  decided,  which  was  merely  that, 
under  the  will,  the  residuary  legatee  took  clear  of  debts,  which  were  held 
to  be  payable  out  of  the  real  estate,  but  for  the  sake  of  certain  expressions 
used  by  Lord  Cowper  in  giving  judgment.  He  says,  'if  a  sum  of  money 
could  be  devised  in  trust  to  be  laid  out  in  laud,  and  the  uses  to  which 
the  land  should  go  be  not  declared,  if  the  money  thus  devised  be  consi- 
dered as  land,  why  should  not  the  benefit  of  the  money  go  to  the  heir-at- 
law  as  a  resulting  trust  ?  It  is  on  this,  in  the  first  place,  to  be  observed, 
that  this  was  not  a  point  in  the  case,  but  the  expression  is  merely  a  dic- 
tum. The  decision  was  in  1716,  and  therefore  *long  before  Ack-  p^^, ,.-, 
royd  V.  Smithson,  which  was  in  1780  ;  and  Lord  Cowper  through-  L  "  J  ■ 
out  considered  the  rule  as  to  money  directed  to  be  laid  out  in  land,  and 
land  directed  to  be  sold,  as  identically  the  same.  Had  he  therefore  con- 
sidered the  rule  as  to  the  proceeds  of  land  directed  to  be  sold  to  be  as  it 
was  established  in  Ackroyd  v.  Smithson,  he  could  not  have  used  this 
expression  as  to  money  directed  to  be  invested  in  land.  It  is  also  to  be 
observed,  no  case  is  cited  as  bearing  on  the  proposition  alluded  to  in  the 
judgment.  The  case  of  Leslie  v.  The  Duke  of  Devonshire(/.-)  is  that 
which  creates  the  greatest  difficulty.  In  that  case  the  testator,  by  deed, 
created  a  trust  of  60,000/.,  which  he  had  on  mortgage,  and  certain  free- 
hold leases  and  leases  for  years.  The  60,000?.  were  to  be  laid  out  in  land, 
to  be  settled  as  to  part  on  certain  uses  to  his  son  and  two  daughters,  and 
their  children  (it  failed  with  them,  all  dying  without  issue,)  the  ultimate 
remainder  to  Joyce  Leslie  in  fee.  As  to  certain  other  parts,  to  certain 
other  uses  to  his  widow  and  children,  which  failed,  and  with  ultimate 
remainder  to  Thomas  Lyster  in  fee.  And  as  to  8,500?.,  part  of  the 
60,000?.,  due  on  a  particular  mortgage,  and  his  freehold  leases  and  leases 
for  years,  on  trust,  to  secure  certain  annuities  to  his  daughters,  and  the 
fee  of  the  land  to  be  purchased  by  the  8,500?.,  and  the  absolute  interest 
in  the  freehold  leases  to  his  son.  In  this  deed  there  was  reserved  a  power 
of  revocation  ;  and  the  testator  by  his  will  revoked  the  grant  of  two  leases 

(^)  1  M.  &  K.  6G5.        (A)  2Edea.  155.        (?)  Arabl.  582.        {k)  2  B.  C.  C.  187. 


716 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


for  years,  and  of  a  mortgage,  part  of  the  60,000/.,  but  not  part  of  the 
8  500/.,  and  lie  charged  his  annuities  to  his  daughters  on  the  8,500/., 
mortgage,  and  another  of  6,700/.,  not  included  in  the  settlement ;  and 
he  in'troduced  another  annuity  to  another  person  ;  and  then  directed,  that 
the  said  annuities  being  paid,  the  surplusage  of  interest  of  the  two  mort- 
crages,  or  of  the  rents  of  the  land  to  be  purchased,  should  be  paid  to  his 
son  for  life,  and  then  should  be  settled  in  trust,  after  the  manner,  and 
under  the  same  conditions,  limitations,  and  restrictions,  as  his  other 
estates  were  directed  to  be  settled.  All  the  testator's  children  died 
without  issue,  but  the  son  devised  all  his  real  and  personal  estate  to  his 
wife ;  she  died  intestate  as  to  her  real  estate,  and  the  Duke  of  Devon- 
shire who  was  her  heir,  and  who  derived  his  title  from  the  testator's 
son,  claimed  the  8,500/.  and  the  6,700/.  To  support  this  claim,  it  was 
endeavored  to  show  the  testator's  son  had  been  entitled  to  these  sums  as 
real  estate.  It  was  immaterial  whether  he  was  entitled  under  the  deed, 
as  devisee  under  the  will,  or  as  heir.  His  counsel  made  three  points  : 
first,  whether  the  gift  was  void,  and,  as  such,  went  to  the  personal  repre- 
sentative ;  secondly,  whether  it  was  to  be  divided  into  portions  between 
the  classes  of  devisees  ;  and,  thirdly,  whether  it  went  to  the  third  class, 
that  is  to  say,  to  the  son  in  fee ;  and  they  insisted  on  the  third  of  these 
propositions.  It  is  to  be  observed,  that  they  did  not  claim  it  as  having 
vested  in  the  son  as  heir,  on  the  supposition  of  the  devise  being  void  for 
uncertainty,  although  that  would  have  been  equally  maintainable,  but 
seemed  to  assume,  if  the  devise  was  void,  then  the  personal  representative 
would  take  the  mortgages,  and,  if  the  decision  had  been  merely  in  favor 
of  the  duke's  claim  as  deriving  title  through  the  heir  of  the  testator,  it 
"would  obviously  have  been  referred  to  the  ground  taken  in  argument  by 
his  counsel,  and  would  have  been  no  authority  in  support  of  the  claim  of 
the  heir  in  the  present  case  ;  but,  according  to  Mr.  Brown's  report  of  the 
r*QlRn  judgment.  Lord  Kenyon  took  no  notice  of  the  point  urged,  but 
L  -I  *decided  in  favour  of  the  title  of  the  heir,  on  the  ground  of  intes- 
tacy, and  this  without  time  taken  for  consideration,  without  any  one  case 
being  cited,  or  any  argument  addressed  to  that  question.  Possibly  Lord 
Kenyon's  view  of  the  question  was  mistaken  by  the  reporter  :  as  it  stands, 
it  appears  to  be  an  authority  for  the  claim  of  the  heir.  The  character  of 
the  judge  entitles  every  decision  of  his  to  the  highest  respect,  but  in  this 
case  the  circumstance  above  mentioned  detracts  from  the  authority  of 
the  opinion  expressed.  The  case  of  Tregonwell  v.  Sydenham(/)  was  also 
much  relied  on ;  but  that  case  also  is  applicable  only  on  account  of  cer- 
tain observations  of  Lord  Redesdule,  and  not  from  the  decision  itself. 
The  testator  devised  land  in  strict  settlement,  subject  to  a  certain  trust 
for  raising  20,000/.,  which  were  directed  to  be  laid  out  in  the  purchase 
of  land  to  be  settled  to  certain  uses,  which  were  void,  as  being  too  remote ; 
and  the  decision  was,  that  the  20,000/.  belonged  to  the  heir.  This  deci- 
sion does  not  touch  the  present  question  ;  that  was  not  personalty  directed 
to  be  invested  in  land,  but  land  first  directed  to  be  converted  into  money 
and  re-invested  into  land,  and  all  the  purposes  for  which  this  was  to  be 
done  having  failed,  the  heir  took  the  land  so  directed  to  be  converted 

{I)  3  Dow.  194. 


APPENDIX.  717 

into  money.  Lord  Redesdale  does  not  advert  to  this  circumstance,  but 
is  made  to  say,  <  It  has  been  established  in  many  cases,  that  where  land 
is  directed  to  be  turned  into  money,  or  money  is  directed  to  be  laid  out 
in  land,  both  shall  be  considered  as  that  species  of  property  into  which 
they  are  directed  to  be  converted.  Considering  the  20,000/.  as  land,  the 
disposition  not  being  capable  of  being  cai-ried  into  effect,  who  is  to  take  ? 
The  heir-at-law  must  take.  If  the  testator  had  directed  20,000/.  to  be 
paid  out  of  the  personal  estate,  and  lands  to  be  purchased,  these  lands, 
on  failure  of  the  intended  purpose,  would  go  to  the  heir-at-law  ;  the  per- 
sonal representative  could  not  take,  as  the  money  was  converted  into 
land.'  It  is  to  be  observed,  Lord  Redesdale,  in  this  observation,  consi- 
ders the  same  rule  as  applicable  to  the  conversion  of  land  into  money  as 
money  into  land,  and  yet  the  observation  he  makes  as  to  the  latter,  if 
applied  to  the  former,  would  be  directly  at  variance  with  Ackroyd  v. 
Smithson.  Unquestionably,  however,  if  Lord  Redesdale  did  use  this 
expression,  the  heir-at-law  in  this  case  has  his  high  authority  in  support 
of  the  proposition  for  which  he  contends.  But  I  can  consider  them  only 
as  dicta,  there  being  other  and  better  grounds  to  support  that  judgment. 
The  case  of  Fletcher  v.  Chapmanf??i)  has  been  considered  as  conclusive 
in  favour  of  the  claim  of  the  heir.  It  is  so  treated  in  Mr.  Jarmau's 
edition  of  Powell  on  Devises,  vol.  ii.  p.  74,  and  was  so  argued  in  this 
case.  If  I  considered  that  case  as  a  distinct  decision  of  the  point  in 
question,  I  should,  as  the  decision  of  the  house  of  lords,  have  felt  bound 
by  its  authority.  That  case,  therefore,  required  my  most  anxious  consi- 
deration, and  I  have  had  the  registrar's  book  examined,  for  the  purpose, 
if  possible,  of  throwing  some  light  on  the  report.  The  particulars  of  that 
case,  as  taken  from  the  registrar's  book,  are  as  follows  : — George  Good- 
man, the  testator,  by  his  will  directed  1,000/.  to  be  invested  in  the  pur- 
chase of  lands,  to  be  so  settled  as  that  William  Goodman,  his  nephew, 
should  have  an  estate  therein  for  his  life  only,  and  in  case  William 
Goodman  did  not  do  such  acts  as  should  be  necessary  whereby  to  limit 
the  said  land  so  to  be  purchased  as  that  he  might  only  have  an  estate 
for  life  therein,  and  likewise  to  bar  himself  of  all  other  claims  and 
demands  in,  unto,  or  out  of  the  estate  of  George  Goodman,  then  he 
*devised  to  the  said  William  40/.  only.  Jane,  the  testator's  r^f^Q-iQ-i 
widow,  was  his  administratrix.  She  paid  William  Goodman  L  J 
300/.  on  account  of  the  1,000/.,  and  advanced  him  200/.,  which  two 
sums  he  laid  out  in  the  purchase  of  land,  and  then  died,  leaving  two 
children,  George,  who  afterwards  died,  and  the  defendant,  Jane  Fletcher, 
both  at  that  time  infants.  The  defendant  Cockerell  was  the  guardian  of 
these  children,  and  on  their  behalf  entered  into  an  agreement  with  Jane, 
the  administratrix  of  the  testator,  by  which  it  was  arranged  that  the 
200/.  advanced  by  her  to  William  should  go  in  further  part  of  the  1,000/., 
and  she  should  pay  to  Cockerell  the  remaining  500/.,  which  was  accord- 
ingly paid,  whereon  he  conveyed  certain  land  to  Jane,  the  administra- 
trix, and  to  the  defendant  Newton,  as  a  security  that  the  300/.,  the  200/., 
and  500/.  should  be  laid  out  and  settled  according  to  the  intent  of  the 
testator.  Elizabeth,  the  late  wife  of  the  plaintiff,  Thomas  Chapman, 
{m)  3  B.  P.  C.  Toml.  ed.  1. 


718       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

was  the  heir-at-law  of  the  testator,  and  the  other  plaintiff,  Roger,  was 
Thomas  Chapman's  son.  Jane,  the  administratrix  of  the  testator,  died, 
and  there  is  no  statement  in  the  pleadings  as  to  any  representation  of 
the  testator's  estate  having  been  obtained  after  her  death.  The  plaintiffs 
were  the  surviving  husband  of  the  heiress  of  the  testator,  and  his  son, 
and  the  defendants  were  Newton,  the  trustee,  and  Cockerell  (who  had 
entered  into  the  arrangement,  and  who  had  received  the  700?.,  and  who 
was  also  administrator  to  William  Goodman,)  and  Jane,  the  only  surviv- 
ing child  of  "William  Goodman;  and  the  object  of  the  bill  was,  to  have 
it  declared  the  1,000?.,  or  the  land  purchased  with  it,  belonged  to  Eliza- 
beth, the  heiress  of  the  testator,  as  against  the  children  of  William 
Goodman.  On  the  part  of  the  defendant  Cockerell,  it  was  insisted  the 
whole  administration  to  the  testator  had  been  granted  to  Gabriel  Good- 
man, with  Jane  :  he  died  in  the  lifetime  of  Jane,  and  they  had  agreed 
the  testator's  debts  and  legacies  should  be  paid,  and  to  that  end  the 
securities  in  writing  concerning  his  personal  estate  should  be  deposited 
in  the  hands  of  the  defendant  Newton.  He  then  stated  a  suit,  after  the 
death  of  William  Goodman,  to  which  Elizabeth  Chapman,  the  heiress  of 
the  testator,  was  party,  in  which  a  decree  was  made  in  1680,  to  take 
accounts  of  the  testator's  estate.  He  then  stated  the  estate  so  conveyed 
by  Cockerell  to  Jane,  as  administratrix  to  the  testator,  had  been  settled 
on  Jane  and  George,  the  two  children  of  William  Goodman ;  the  other 
part  of  the  1,000/.  had  been  invested  on  mortgage;  and  insisted  that 
Jane  Fletcher,  the  only  surviving  child  of  William  Goodman,  was  entitled. 
The  defendant  Newton,  by  his  answer,  represented  himself  solely  as  a 
trustee  of  the  land  conveyed  by  Cockerell,  and  submitted  to  act  as  the 
court  should  direct.  By  the  decree  it  was  declared,  that,  the  testator 
having  declared  that  William  Goodman  should  have  an  estate  for  life 
only,  the  1,000/.,  or  land  purchased  therewith,  belonged  to  the  testator's 
heir-at-law,  and  not  to  the  children  of  William  Goodman.  It  directed 
the  payment  of  the  700/.  received  by  Cockerell  from  Jane,  the  adminis- 
tratrix of  the  testator,  and  an  account,  and  payment  of  the  rents  of 
three-fifths  of  the  land  purchased  by  William  Goodman,  and  a  conveyance 
of  the  three-fifths,  and  the  other  two-fifths  of  the  rents  of  this  land  to  be 
paid  to  the  defendant,  Jane  Fletcher;  the  plaintiff,  Thomas  Chapman, 
to  have  the  whole  of  the  700/.,  and  the  interest  of  three-fifths  of  the 
land,  for  his  life,  and  afterwards  to  his  son,  the  other  plaintiff.  It  is- 
quite  clear,  in  this  case,  there  was  no  contest  between  the  real  and  per- 
sonal representative  of  the  testator,  George  Goodman.  There  was  no 
personal  representative  before  the  court.  It  was  said  in  the  argument 
P9201  *^°  *^^  ^^^^  ^^^  before  me,  that  Newton  represented  in  fact  the 
L  -J  personal  estate,  because  it  had  been  assigned  to  him.  There  is 
no  trace  of  this  in  the  pleadings  of  record  :  it  is  undoubtedly  stated  in 
Cockerell's  answer,  that  by  articles  in  1773,  it  was  agreed  between  Jane, 
the  widow,  and  Gabriel,  the  administrator  of  the  testator,  the  testator's 
debts  and  legacies  should  be  paid,  and  to  that  end  the  securities  and 
writings  concerning  his  personal  estate  should  be  deposited  in  the  hands 
of  the  defendant  Newton.  This  was  only  to  insure  the  arrangements 
between  the  parties,  and  gave  Newton  no  interest  in  the  property ;  and 


APPENDIX.  719 

he  does  not  claim  any.  From  tliis  decree  tlie  child  of  William  Good- 
man appealed,  and  Chapman,  representing  the  heir  of  the  testator,  was 
respondent.  It  is  reported  in  3  B.  P.  C.  1.  But  here,  also,  it  is  obvi- 
ous there  was  no  question  between  the  real  and  personal  representative 
of  the  testator.  Jane,  his  administratrix,  had  paid  the  1,000^.,  and  no 
person  representing  his  personal  estate  was  in  any  way  a  party  to  the 
contest.  It  is  a  case  in  which  the  heir  was  declared  entitled  to  the 
money  directed  to  be  laid  out  in  land,  not  to  any  declared  purpose  which 
failed,  but  for  the  limited  interest,  that  is,  for  the  life  of  William  Grood- 
man ;  but  it  is  not  a  decision  that,  even  in  that  case,  the  heir  was  entitled 
against  the  personal  representative.  No  such  case  was  made  by  the 
pleadings,  or  argued,  or  decided^  and,  there  being  no  party  to  raise  that 
question,  this  case  therefore  decides  nothing  as  to  the  present  matter  in 
contest.  Greaves  v.  Case,  as  reported  1  Vesey,  jun.,  548,  would  appear 
to  be  an  authority  for  the  heir,  but  in  the  report  of  the  same  case,  2 
Cox,  301,  it  is  stated  the  plaintiff  was  both-heir-at  law  and  next  of  kin, 
and  therefore  entitled  in  one  character  or  the  other :  it  was  not  discussed 
in  what  character  he  took,  and  the  point  decided  was  a  different  one. 
Many  cases  were  cited  against  the  claim  of  the  heir,  but  as  they  were 
either  to  establish  general  principles,  which  I  do  not  consider  in  dispute, 
or  with  reference  to  the  point  in  the  case,  to  which  the  opinion  I  have 
formed  on  this  particular  point  makes  it  needless  for  me  to  advert,  I  do 
not  think  it  necessary  to  examine  them  in  detail.  I  may  observe,  no  case 
was  cited  against  the  heir  in  which  the  point  now  contended  for  by  him 
was  directly  raised  and  decided.  It  was  argued,  indeed,  that  Abbot  v. 
Lee(?i)  was  precisely  this  case  :  but  it  appears  the  decision,  although 
against  the  testator's  heir,  was  not  in  favour  of  his  personal  representa- 
tive, but  gave  the  550?.  and  1501.  to  the  representative  of  Mary,  the 
legatee,  considering  that  her  interest  in  these  sums  was  absolute.  There 
are,  however,  some  of  the  cases  cited  for  the  defendant,  which,  although 
nor  precisely  the  case  before  me,  are  most  important,  as  showing,  that 
when  the  whole  object  of  the  bequest  of  money  to  be  converted  into 
land  fails,  the  personal  representative  is  entitled,  and  as  showing  the 
question  of  conversion  of  money  into  land,  and  land  into  money,  has  by 
the  highest  authority  been  considered  as  regulated  by  the  same  rules. 
Such  are  the  cases  of  Robinson  v.  Taylor,^^)  Townley  v.  Bedwell,(ji:>) 
besides  others,  to  which  I  need  not  refer.  The  result  of  the  whole 
authorities  seems  to  be,  that  before  Ackroyd  v.  Smithson  no  distinction 
was  recognized  between  the  doctrine  as  applicable  to  a  conversion  of 
money  into  land,  or  land  into  money  —  that  as  to  both  an  opinion 
prevailed,  that  when  a  conversion  was  necessary,  and  part  of  the  object 
failed,  the  unappropriated  proceeds  belonged  to  that  representative  on 
whom  the  law  cast  that  description  of  property  in  which  such  proceeds 
*were  found  to  exist.  This,  as  to  land  converted  into  money  was  p^„(^„ 
corrected  in  Ackroyd  v.  Smithson ;  but  no  case  has  occurred  in  L  "'J 
which  the  point  has  been  argued  and  determined  as  to  money  converted 
into  land.    I  say  argued  and  determined,  because,  if  determined  in  Leslie 

(n)  2  Vern.  284.  (o)  2  B.  C.  C.  555  ;  1  Yes  jun.  45.  (ja)  6  Yes.  194. 


720  LEW  IN    ON    THE    LAW    OF    TRUSTS,    ETC. 

V.  The  Duke  of  Devonshire  and  Fletcher  v.  Chapman,  it  certainly  was 
not  argued;  but  there  are  undoubtedly  fZ^'cfa  of  very  eminent  judges, 
since  that  time,  which  seem  to  show  an  impression  on  their  mind,  that 
the  principle  of  Ackroyd  v.  Smithson  was  not  to  be  applied  to  a  conver- 
sion of  money  into  land.  Those  learned  judges  had  not  the  benefit, 
which  I  have  had,  of  hearing  the  point  fully  and  most  ably  argued;  and 
having,  after  the  fullest  consideration,  come  to  the  conclusion  that  that 
principle  does  apply  to  the  present  case,  and  as  I  am  not  bound  by  any 
of  the  authorities  to  maintain  a  distinction  which  was  not  originally  sup- 
posed to  exist,  and  which  cannot  be  maintained  in  reason,  and  which, 
therefore,  if  maintained,  would  be  a  reproach  to  the  law  as  it  stands,  I 
feel  myself  fully  justified  in  preserving  the  uniformity  of  the  rule,  as 
applicable  to  the  two  cases,  by  deciding  against  the  claim  of  the  plain- 
tiff; and  I  may  be  allowed  to  express  some  satisfaction  in  finding  I  am 
not  compelled  by  authority  to  hold  that  any  heir  should  take,  as  such, 
what  had  no  inheritable  quality,  but  was  pure  personal  estate,  at  the 
time  of  the  ancestor's  death,  or  that,  as  devisee,  he  should  take  that 
which  was  never  destined  for  him,  but  was  in  most  unquestionable  terms 
given  to  another.  One  other  point  was  made  for  the  heir,  to  which  now 
I  will  very  shortly  allude.  It  was  said  as  the  testator  had  directed  the 
estate  should  be  purchased  and  remain  in  his  name,  his  heir  must  have 
been  a  trustee  of  it,  and,  if  it  had  been  so  purchased  and  so  vested  in 
the  heir,  there  would  be  no  equity  on  the  part  of  the  next  of  kin,  as 
against  the  heir,  to  convert  this  land  into  money.  That  proposition  fails 
in  all  its  parts  :  there  is  nothing  to  show  the  heir  is  to  be  a  trustee  :  the 
heir  might  indeed  have  borne  a  different  name  :  if  he  had  been  a  trus- 
tee, he  would  have  held  it  as  a  trustee,  and  not  as  heir.  And  the  rule, 
that  there  are  no  equities  between  representatives,  would  have  had  no 
application ;  and  if  it  had,  it  would  have  been  fatal  to  the  claim  of  the 
heir,  who  now  seeks,  after  all  the  purposes  of  the  will  are  answered,  to 
convert  to  his  own  benefit,  against  the  next  of  kin,  what  was  money  at 
the  testator's  death,  and  has  ever  since  so  remained.  The  argument  of 
John  James  Stevens,  the  plaintiff,  rests  on  the  supposition  that  the 
30,000?.  ought  to  be  considered  as  land  as  between  the  real  and  personal 
representative  ;  and  as  my  judgment  is  against  the  validity  of  such  claim, 
the  bill  must  be  dismissed,  but  without  costs.  I  have  some  reluctance 
in  refusing  to  give  the  defendants  the  costs,  because,  in  general,  I  think 
that  those  who  try  the  experiment  of  a  claim  should  pay  the  expenses  of 
it  if  they  fail,  however  reasonable  the  ground  may  have  been  for  trying 
it ;  but  this  question  is  so  involved  in  difficulty,  from  what  has  taken 
place  and  been  said  in  courts  of  equity  at  different  times,  and  arises  so 
much  from  the  act  of  the  testator,  from  whom  both  claim,  that  I  think 
it  fair  each  party  should  bear  their  own  costs." 


APPENDIX.  721 

*No.  IV.  [*922] 

Supra,  p.  568. 
Appointment  of  new  Trustee  of  Stock. 

This  Indenture,  nicade  the  day  of  between  E.  F.  of 

and  G-.  his  wife  (the  donees  of  the  2:>oiver,)  of  the  first  part ; 
A.  B.  of  (the  continuing  trustee,)  and  C.  D.  of  {the 

retiring  trustee,)  of  the  second  part,  and  I.  K.  of  [the  new 

trustee,)  of  the  third  part :  Whereas,  by  an  indenture  of  settlement  bear- 
ing date  the  day  of  ,  and  made  or  expressed  to  be  made 
between,  &c.,  being  the  settlement  made  in  contemplation  of  the  mar- 
riage then  intended  and  soon  afterwards  solemnized  between  the  said  E. 
F.  and  G.,  his  wife,  after  reciting  that  a  sum  of         I.  three  per  cent, 
consolidated  bank  annuities  had  been  transferred  into  the  joint  names  of 
the  said  A.  B.  and  C.  D.  in  the  books  of  the  Governor  and  Company  of 
the  Bank  of  England,  It  was  witnessed,  that  for  the  consideration  therein 
mentioned,  it  was  thereby  agreed  and  declared,  that  the  said  A.  B.  and 
C.  D.,  and  the  survivor  of  them,  and  the  executors,  administrators,  and 
assigns  of  such  survivor,  should  stand  possessed  of  and  interested  in  the 
said  sum  of           I.  three  per  cent,  consolidated  bank  annuities,  upon 
trust,  from  and  after  the  solemnization  of  the  said  marriage,  to  pay  the 
dividends,  interest,  and  annual  produce  thereof  unto  the  said  E.  F.  and 
his  assigns,  for  his  life,  and  after  his  decease,  unto  the  said  G.  F.  and 
her  assigns,  for  her  life,  and  after  her  decease,  upon  the  trusts  therein 
particularly  mentioned  for  the  benefit  of  the  issue  of  the  said  marriage;  and 
by  the  said  indenture  now  in  recital  it  was  provided  (rectVepoifer  0/ 
appointment  of  new  trustees  limited  to  E.  F.  and  G.  his  wife,  and 
the  usucd  direction  for  transfer  of  the  trust  fund,  and  declaration  as^  to 
the  powers  of  trustees :)  And  whereas  the  said  C.  D.  is  desirous  of  being 
discharged  from  the  trusts  of  the  said  indenture,  and  the  said  E.  F.  and 
Gr.,  his  wife,  are  desirous  of  appointing  the  said  I.  K.  to  be  a  trustee  in 
the  place  of  the  said  C.  1). ;  And  whereas  the  said  sum  of        ^   I.  three 
per  cent,  consolidated  bank  annuities  is  intended  to  be  forthwith  trans- 
ferred by  the  said  A.  B.  and  C.  D.  into  the  joint  names  of  the  said  A. 
B.  and  I.  K.  in  the  books  of  the  Governor  and  Company  of  the  Bank  of 
England  :  Now  this  indenture  witnesseth,  that  in  pursuance  of  the  said 
desire  on  the  part  of  the  said  E.  F.  and  G.,  his  wife,  and  by  force  and 
virtue  and  in  exercise  and  execution  of  the  power  or  authority  by  the 
said  recited  indenture  limited  to  the  said  E.  F.  and  G.  his  wife,  and  of 
every  other  power  or  authority  in  anywise  enabling  them  or  either  of 
them  in  his  behalf,  they,  the  said  E.  F.  and  G.  his  wife,  do  and  each  of 
them  doth  by  this  deed  or  instrument  in  writing  sealed  and  delivered  by 
them  in  the  presence  of  and  attested  by  the  two  credible  persons  whoso 
names  are  hereupon  indorsed  as  witnesses  to  the  sealing  and  delivery 
hereof  by  the  said  E.  F.  and  G.  his  wife,(<2)  nominate  and  appoint  the 

(q)  The  instrument  executing  the  power  must  of  course  be  in  conformity  with 
the  terms  of  the  powei*. 


722  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

said  I  K  to  be  a  trustee  in  the  place  of  tlie  said  C.  D.  for  the  purposes 
of  the  said  indenture,  or  such  of  them  as  are  now  subsisting  and  capable 
of  taking  effect ;  And  it  is  hereby  agreed  *and  declared  that  the 
[*923]  g^.^  j^  -g_  ^^^  J  j^^  and  the  survivor  of  them,  and  the  execu- 
tors administrators,  and  assigns  of  such  survivor,  shall  stand  and  be  pos- 
sessed of  and  interested  in  the  said  sum  of  I.  three  per  cent,  con- 
solidated bank  annuities,  when  and  so  soon  as  the  same  shall  have  been 
transferred  into  the  joint  names  of  the  said  A.  B.  and  I.  K.,  and  of  and 
in  the  dividends,  interest,  and  annual  produce  thereof,  upon  and  for  the 
trusts,  intents,  and  purposes,  and  with,  under,  and  subject  to  the  powers, 
provisoes,  agreements,  and  declarations  in  and  by  the  said  indenture  of 
settlement  expressed  and  declared  of  and  concerning  the  same  or  such  of 
the  said  trusts,  intents,  and  purposes,  powers,  provisoes,  agreements,  and 
declarations  as  are  now  subsisting  and  capable  of  taking  effect.  In  wit- 
ness, &c. 

No.  V. 

Suprs,  p.  568. 
Appointment  of  new  Trustee  of  Chattels. 

This  Indenture,  made  the  day  of  ,  between  A.  B.  of 

(the  surviving  trustee)  of  the  first  part ;  E.  F.  of  [party 

heneficially  interested  and  s^ii  juris){r)  of  the  second  part;  G.  H.  of 
(new  trustee)  of  the   third  part;  and  I.   K.  of  , 

(provisional  trustee)  of  the  fourth  part.  \_Recite  creation  of  trust  of 
chattels,  real  or  personal,  in  favour  of  E.  F.  for  life,  with  limitations 
over,  and  a  power  of  appointment  of  new  trustees  to  the  continuing  or 
surviving  trustee,  hy  deed  or  tcriting  under  hand  and  seal,  with  the  usual 
direction  for  the  transfer  of  the  trust  estate  and  the  declaration  as  to 
powers.']  And  whereas  the  said  C.  D.  departed  this  life  on  or  about  the 
day  of  ,  leaving  the  said  A.  B.  his  co-trustee  him  surviv- 

ing; and  whereas  the  said  A.  B.  is  desirous  of  appointing  the  said  G. 
H.  to  be  a  trustee  of  the  said  recited  indenture,  in  the  place  of  the  said 
C.  D.  deceased:  Now  this  indenture  witnesseth,  that  in  pursuance  of  such 
desire,  and  by  force  and  virtue,  and  in  exercise  and  execution  of  the  power 
or  authority  by  the  said  recited  indenture  limited  to  the  said  A.  B.  and  of 
every  other  power  or  authority  inany  wise  enabling  him  in  this  behalf,  he 
the  said  A.  B.  (with  the  full  consent  and  approbation  of  the  said  E.  F., 
testified  by  his  being  a  party  to,  and  executing  these  presents)  doth  by  this 
deed  or  writing  under  his  hand  and  seal,  nominate  and  appoint  the  said  G. 
H.  to  be  a  trustee  in  the  place  of  the  said  C.  D.,  deceased,  for  the  purposes 
of  the  said  indenture  or  such  of  them  as  are  now  subsisting  and  capable 
of  taking  effect.  And  this  indenture  further  witnesseth,  that  in  pursu- 
ance of  the  direction  in  this  behalf  in  the  said  recited  indenture  con- 
tained, he  the  said  A.  B.  (with  the  full  consent   and  approbation  of  the 

(r)  Though  not  a  donee  of  the  power,  any  party  beneficially  interested,  who  is 
sui  juris,  may  properly  join  in  the  appointment. 


APPENDIX.  723 

said  E.  F.  testified  as  aforesaid)  doth  bargain,  sell,  and  assign  unto  the 
said  I.  K.,  his  executors  and  administrators,  all  and  singnlar  (describe 
the  chattels,  real  or  personal,  %oith  the  proper  app%irtenances,\  and  all  the 
estate,  &c.  To  have  and  to  hold  the  said  {chattels,  real  or  personal\  unto 
the  said  I.  K.,  his  executors  and  administrators,  {or  for  all  the  residue 
and  remainder  now  to  come  and  unexpired  of  the  said  term  of 
years)  upon  trust,  *and  to  the  intent  that  the  said  I.  K.,  his  exe-  r;):Q9 ^-i 
cutors  or  administrators,  may  forthwith  assign  the  same  {or  L  ""  J 
hereditaments  for  all  the  residue  of  the  said  term)  unto  the  said  A.  B. 
and  G.  H.,  their  executors,  administrators,  and  assigns,  upon  and  for 
the  trusts,  intents,  and  purposes,  and  with,  under,  and  subject  to  the 
powers,  provisoes,  agreements,  and  declarations,  in  and  by  the  said  recited 
indenture  expressed  and  declared,  of  and  concerning  the  same  or  such 
of  the  said  trusts,  intents,  and  purposes,  powers,  provisoes,  agreements, 
and  declarations  as  are  now  subsisting  and  capable  of  taking  effect.  In 
witness,  &c. 

Re-assignment  to  Tjc  indorsed. 

This  Indenture  made,  &c.,  between  the  within  named  I.  K.  of  the  one 
part,  and  the  within  named  A.  B.  and  Gr.  H.  of  the  other  part,  Witnesseth, 
that  in  pursuance  of  the  trust  in  the  within  written  indenture  in  this 
behalf  contained,  he  the  said  I.  K.  doth  bargain,  sell,  and  assign  unto 
the  said  A.  B.  and  Gr.  H.,  their  executors,  administrators,  and  assigns, 
all  and  singular  (the  chattels,  real  or  personal,  with  tlieir  appurtenances^ 
by  the  within  written  indenture  assigned  to  the  said  I.  K.,  his  execu- 
tors and  administrators,  and  all  the  estate,  &c.  To  have  and  to  hold  all 
and  singular  (^Ae  chattels,  real  or  personal,  with  the  ap>purtenances\  unto 
the  said  A.  B.  and  Gr.  H.  their  executors,  administrators,  and  assigns, 
{or  for  all  the  residue  and  remainder  now  to  come  and  unexpired  of  the 
said  term  of  years,  upon  and  for  the  trusts,  intents,  and  purposes, 

and  with,  under,  and  subject  to  the  powers,  provisoes,  agreements,  and 
declarations  in  and  by  the  within  written  indenture  expressed  and  declared 
of  and  concerning  the  same  {or  hereditaments)  or  such  of  the  said  trusts, 
intents,  and  purposes,  powers,  provisoes,  agreements,  and  declarations, 
as  are  now  subsisting,  and  capable  of  taking  effect.     In  witness,  &c. 

Some  add  a  covenant  hy  I.  K.  against  incnmhrances. 


No.  VI. 
Supra,  p.  569. 

Ap)pointment  of  new  Trustee  of  Freeholds  hy  single  Deed. 

This  Indenture,  made  the  day  of  ,  between  A.  B.  of 

(sui-viving  trustee^  of  the  first  part ',  E.  F.  of  ,  (party 

heneficicdJy  interested)  of  the  second  part ;  Gr.  H.  of  ,  {relessee 

to  uses\o{  the  third  part;  and  I.  K.  of  {new  trustee'^  of  the  fourth 

part.     VRecite  conveyance  of  freehold  estates  unto  and  to  the  use  of  A.  B. 
and  C.  D.,  and  their  heirs,  upon  the  trust  therein  mentioned,  with  a 


724  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

power  ofajipointmentofnew  trustees  to  the  continuing  or  surviving  trus- 
tee, and  the  usual  direction  for  transfer  of  the  estate  and  declaration  as 
topowers.l  And  whereas  the  said  C.  D.  departed  this  life  on  or  about 
the  day  of  ,  leaving  the  said  A.  B.  his  co-trustee  him 

surviving.  And  whereas  the  said  A.  B.  is  desirous  of  appointing  the 
said  I.  K.  to  be  a  trustee  of  the  said  recited  indenture  in  the  place  of 
the  said  C.  D.  deceased.  Now  this  indenture  witnesseth,  that  in  pur- 
suance of  such  desire,  and  by  force  and  virtue,  &c.  [Insert  ajipoint- 
ment  hy  A.  B.,  of  I.  K-,  to  he  trustee  in  the  place  of  C.  D.,  as  in  Appen- 
dix, No.  V.l  And  this  indenture  further  witnesseth,  that  in 
[  ^-^^J  *pursuance  of  the  direction  in  this  behalf  in  the  said  recited  in- 
denture contained,  the  said  A.  B.  (  with  the  full  consent  and  approbation 
of  the  said  E.  F.  testified  as  aforesaid)  doth  by  these  presents  grant  and 
release  unto  the  said  I.  K.  and  his  heirs,  all  and  singular  [clescrihe  the 
freeholds  with  their  ajipurtenances,']  and  the  reversion,  &c.,  and  all  the 
estate,  &c.,  To  have  and  to  hold  the  said  (^freeholds  icith  their  appurte- 
nances) unto  the  said  I.  K.  and  his  heirs,  to  the  use  of  the  said  A.  B. 
and  I.  K.,  their  heirs  and  assigns,  upon  and  for  the  trusts,  intents,  and 
purposes,  and  with,  under,  and  subject  to  the  powers,  provisoes,  agree- 
ments, and  declarations,  in  and  by  the  said  recited  indenture  expressed 
and  declared  of  and  concerning  the  same,  or  such  of  the  said  trusts, 
intents,  and  purposes,  powers,  provisoes,  agreements,  and  declarations  as 
are  now  subsisting  and  capable  of  taking  elFect.     In  witness,  &c. 

No.  VII. 

Supra,  569. 

Appointment  of  new  Trustee  of  Freeholds  hy  two  Deeds. 

This  Indenture,  made  the  day  of  ,  between  A.  B. 

of  ,  {continuing  trustee,)  and  C.  D.  of  ,  [retiring 

trustee,')  of  the  first  part ;  E.  F.  of  ,  and  G.  his  wife  (tenants 

for  life)  of  the  second  part;  I.  K.  of  ,  [new  trustee)  of  the 

third  part;  and  L.  M.  of  ,  (j^rovisional trustee)  of  the  fourth 

part.  Whereas,  by  indentures  of  lease  and  release,  bearing  date  respec- 
tively, &c.,  and  made  or  expressed  to  be  made  between,  &c.,  (being  the 
settlement  made  in  contemplation  of  the  marriage  then  intended,  and 
soon  afterwards  solemnized,  between  the  said  E.  F.  and  G.  his  wife)  for 
the  consideration  therein  mentioned,  &c.  [Recite  i-elease  to  A.  B.  and  C. 
D.  and  their  heirs,  to  the  use  of  B.  F.  and  G.  11.  successively  for  life, 
with  remainders  over,  and poioer  of  ap-pointment  of  new  trustees  to  the 
surviving  or  continuing  trustee,  with  the  consent  of  E.  F.  and  G.  H.j 
during  their  lives,  &c.~\  And  by  the  said  indenture  of  release  and  set- 
tlement now  in  recital,  it  was  provided,  that  in  case  the  said  A.  B.  and 
C.  1).,  or  either  of  them,  or  any  trustee  to  be  appointed  as  thereinafter 
mentioned,  or  their  or  any  of  their  heirs  should  die,  or  be  desirous  of 
being  discharged  from,  or  refuse,  or  decline,  or  become  incapable  to  act 
in  the  trusts  thereby  declared  before  the  same  should  be  fully  executed, 
it  should  be  lawful  for  the  said  A.  B.  and  C.  D.,  and  the  survivor  of 


i 


APPENDIX.  725 

them,  and  the  executors  and  administrators  of  such  survivor,  with  the 
consent  and  approbation  of  the  said  E.  F.  and  G.  H.,  during  their  lives, 
and  of  the  survivor  of  them,  during  his  or  her  life,  and,  after  the  death 
of  such  survivor,  at  their  or  his  sole  discretion,  by  any  writing  or  writ- 
ings under  their  or  his  hands  and  seals,  or  hand  and  seal,  to  nominate 
and  appoint  any  other  person  or  persons  to  be  a  trustee  or  trustees  in  the 
place  of  the  trustee  or  trustees  so  dying,  or  desirous  of  being  discharged 
from,  or  refusing,  declining,  or  becoming  incapable  to  act  as  aforesaid  ', 
and  that,  upon  such  nomination  and  appointment,  the  said  trust  estates 
should,  with  all  convenient  speed,  be  conveyed  and  assured  in  such  man- 
ner that  the  same  might  be  legally  and  effectually  vested  in  such  new 
trustee  jointly  with  the  surviving  or  continuing  trustee;  or,  in  case 
there  should  be  no  surviving  or  continuing  trustee,  then  in  such  new 
trustee  or  trustees  only,  to,  for,  and  upon  the  *uses,  trusts,  in-  r*g261 
tents,  and  purposes  thereinbefore  expressed  and  declared  of  and  L     ■"  J 
concerning  the  same ;  and  it  was  thereby  declared,  that  every  such  new 
trustee  should  in  all  things  act  in  the  said  trusts,  and  with  the  same 
powers  and  authorities  as  if  he  had  been  originally  appointed  a  trustee 
by  the  said  indenture  of  release  and  settlement  now  in  recital.     And 
whereas  the  said  C.  J),  is  desirous  of  being  discharged  from  the  trusts  of 
the  said  indenture  of  release  and  settlement,  and  the  said  A.  B.  is  desi- 
rous, with  the  consent  of  the  said  E.  F.  and  G.  his  wife,  of  appointing 
the  said  I.  K.  to  be  a  trustee  in  the  place  of  the  said  CD.:  Now  this 
indenture  witnesseth,  that  in  pursuance  of  such  desire  on  the  part  of  the 
said  A.  B.,  and  by  force  and  virtue,  and  in  exercise  and  execution  of  the 
power  or  authority  in  that  behalf  limited  to  him  by  the  said  indenture 
of  release  and  settlement,  and  of  every  other  power  or  authority  in  any- 
wise enabling  him  in  this  be  half,  he  the  said  A.  B.,  with  the  consent  and 
approbation  of  the  said  E.  F.  and  G.  his  wife  (testified  by  their  respec- 
tively being  parties  to  and  executing  these  presents,)  doth  by  this  deed 
or  writing  under  his  hand  and  seal,  nominate  and  appoint  the  said  I.  K. 
to  be  a  trustee  in  the  place  of  the  said  C  D.  for  the  purposes  of  the  said 
indenture  of  release  and  settlement,  or  such  of  them  as  are  now  subsist- 
ing and  capable  of  taking  effect.    And  this  indenture  further  witnesseth, 
that  in  pursuance  of  the  direction  in  this  behalf  contained  in  the  said 
indenture  of  release  and  settlement,  and  by  force  and  virtue,  and  in  exer- 
cise and  execution  of  the  power  or  authority  by  the  same  indenture  for 
this  purpose  given  to  the  said  A.  B.  and  C.  D.,  or  either  of  them,  and 
of  every  other  power  or  authority  in  anywise  enabling  them  or  either  of 
them  in  this  behalf,  they  the  said  A.  B.,  and  C.  D.  do  and  each  of  them 
doth  by  these  presents  revoke,  determine,  and  make  void  all  and  every 
the  uses,  trusts,  intents,  purposes,  powers,  provisoes,  agreements,  and 
declarations  in  and  by  the  said  indenture  of  release  and  settlement 
limited,   expressed,   declared,  and  contained,  and  now  subsisting  and 
capable  of  taking  effect,  of  or  concerning  the  freehold  estates  and  here- 
ditaments hereinafter  described  or  referred  to,  and  of  and  concerning 
their  rights,  members,  and  appurtenances,  and  do  and  each  of  them  doth 
direct,  limit,  and  appoint  that  the  same  freehold  estates  and  heredita- 
ments, with  their  appurtenances,  shall  henceforth  go,  remain,  and  be  to 


726  LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 

tlie  use  of  the  said  L.  M.,  and  his  heirs,  upon  the  trust  and  to  the  intent 
hereinafter  expressed.  And  this  indenture  further  witnesseth,  that  in 
further  pursuance  of  the  direction  in  the  said  indenture  of  release  and 
settlement,  in  this  behalf  contained,  the  said  A.  B.  and  C.  D.  do  and 
each  of  them  doth  by  these  presents,  grant  and  release  unto  the  said  L. 
M.,  and  his  heirs,  all  and  singular  {tlie  freeliold  hereditaments,')  and  all 
other,  if  any,  the  hereditaments  and  premises  comprised  in  the  said  in- 
denture of  release  and  settlement,  with  their  rights,  members,  and  appur- 
tenances, and  the  reversion,  &c.,  and  all  the  estate,  &c.  To  have  and  to 
hold  the  said  {freelioJd  hereditaments,')  and  all  and  singular  other  the  pre- 
mises hereby  released  or  intended  so  to  be,  with  their  rights,  members, 
and  appurtenances  unto  the  said  L.  M.  and  his  heirs,  to  the  use  of  the 
said  L.  M.  and  his  heirs,  upon  the  trust  and  for  the  intent  hereinafter 
expressed.  And  it  is  hereby  agreed  and  declared,  between  and  by  the 
parties  hereto,  that  the  said  hereditaments  and  premises  hereinbefore 
mentioned  or  referred  to,  with  their  appurtenances,  are  hereinbefore 
appointed  and  released  to  the  use  of  the  said  L.  M.  and  his  heirs  upon 
trust,  that  the  said  L.  M.  or  his  heirs  may  forthwith  convey  the  same 
hereditaments  and  premises,  with  their  appurtenances,  unto  *the 
L  "■  -I  said  A.  B.  and  I  K.,  and  their  heirs,  to  the  uses  upon  and  for 
the  trusts,  intents,  and  purposes,  and  with,  under,  and  subject  to  the 
powers,  provisoes,  agi-eements,  and  declarations,  to,  upon,  for,  with, 
under,  and  subject  to  which  the  said  hereditaments  and  premises,  with 
their  appurtenances,  would  now,  under  and  by  virtue  of  the  said  inden- 
ture of  release  and  settlement,  stand  and  be  limited,  or  subject,  in  case 
this  present  indenture  had  not  been  executed,  and  the  said  I.  K.  had 
been  originally  made  a  relessee  to  uses,  in  and  by  the  said  indenture  of 
release  and  settlement,  instead  of  the  said  C.  D.,  and  accordingly  the 
name  of  the  said  I.  K.  had  in  the  said  indenture  been  inserted  through- 
out, instead  of  the  name  of  the  said  C.  D.  \  Covenant  hy  C.  D.  against 
incumbrances.'^     In  witness,  &c. 

Reconveyance  to  lie  indorsed. 

This  Indenture  made  the  day  of  ,  between  the 

within  named  L.  M.  of  the  one  part,  and  the  within  named  A.  B.  and 
I.  K.  of  the  other  part,  Witnesseth,  that  in  pursuance  of  the  trust  in 
the  within  written  indenture  in  this  behalf  contained;  he  the  said  L.  M. 
doth  by  these  presents,  grant  and  release  unto  the  said  A.  B.  and  I.  K., 
and  their  heirs,  all  and  singular  the  hereditaments  and  premises,  by  the 
within  written  indenture  appointed  and  released  to  the  use  of  the  said 
L.  M.  and  his  heirs,  with  their  rights,  members,  and  appurtenances,  and 
all  the  estate,  &c.  To  have  and  to  hold  the  said  hereditaments,  and 
premises  hereinbefore  released,  or  intended  so  to  be,  unto  the  said  A.  B. 
and  I.  K.,  and  their  heirs,  to  the  uses,  upon  and  for  the  trusts,  intents, 
and  purposes,  and  with,  under,  and  subject  to  the  powers,  provisoes, 
agreements,  and  declarations,  to,  for,  upon,  with,  under,  and  subject  to 
which  the  same  hereditaments  and  premises  would  now,  under,  and  by 
virtue  of  the  within  recited  indenture  of  release  and  settlement  stand 


APPENDIX.  727 

and  be  limited  or  subject,  in  case  the  within  written  indenture,  and 
these  presents  had  not  been  executed,  and  the  said  I.  K.  had  been 
originally  made  a  relessee  to  uses,  and  trustee  in  and  by  the  said  within 
recited  indenture  of  release  and  settlement,  instead  of  the  within  named 
C.  D.,  and  accordingly  the  name  of  the  said  I.  K.  had  in  the  same 
indenture  been  inserted  throughout,  instead  of  the  name  of  the  said  C.  D. 
In  witness,  &e. 

Some  add  a  covenant  hy  I.  K.  against  incumJj ranees. 


No.  VIII. 
Sands  v.  Nugee.     Supra,  p.  533. 

July  5th,  1836. 

The  Duke  of  Koxburgh,  by  will  dated  November  5th,  1803,  gave  all 
his  estates,  real  and  personal,  to  John  Wanchope*  and  James  Dundas 
upon  trust  to  sell,  &c.,  "  with  full  power  to  each  of  the  trustees  before 
named  or  to  be  named  by  the  testator,  who  should  accept  of  the  trust, 
to  name  and  appoint  any  other  person  he  pleased  to  succeed  himself  in 
the  trust  thereby  created  after  his  own  decease,  and  also  to  the  said 
^nominees  to  name  other  persons  to  succeed  to  them  respectively  |-:(:Q9q-i 
in  the  said  trust  after  their  death,  and  that  from  time  to  time,  L  *^  J 
and  at  all  times  coming,  aye,  and  until  the  trust  should  be  completely 
executed,  and  the  purposes  thereof  fulfilled.  And  also  with  power  to 
the  said  trustees  named  or  to  be  named  by  the  testator,  or  to  be  assumed, 
as  said  was,  accepting  and  surviving,  or  their  quorum  aforesaid,  to 
assume  and  appoint  any  person  or  persons  they  pleased  as  joint  trustees  in 
the  trusts  thereby  granted  in  place  of  any  former  trustee  or  trustees 
named  or  to  be  named  by  the  testator,  and  assumed  as  aforesaid,  who 
should  decline  to  accept,  or  who  should  leave  Britain  or  go  abroad,  or  who 
should  have  deceased  without  naming  a  successor  or  successors  to  himself 
or  themselves  in  the  trust  thereby  created,  and  which  trustees  so  to  be 
assumed  should  have  as  full  and  ample  power  as  was  given  to  the  trustees 
thereby  appointed." 

The  duke,  a  short  time  before  his  death,  executed  a  deed  of  instruc- 
tions in  the  nature  of  a  codicil,  in  which  he  gave  certain  directions  as  to 
the  application  of  the  proceeds  of  the  sale,  and  died  in  March,  1804. 

Mr.  Dundas  disclaimed  both  as  trustee  and  executor.  Mr.  Wanchope 
took  out  probate,  and  acted  as  trustee,  and,  in  1829,  died,  having,  by 
will,  dated  in  1823,  appointed  John  Spottiswoode,  David  Robertson, 
and  Warren  Hastings  Sands  to  succeed  him  in  the  trusts  of  the  duke's 
will,  and  devised  and  bequeathed  to  them  all  the  trust  estates. 

Spottiswoode  and  Robertson  disclaimed,  and  Sands  alone  proved  Wan- 
chope's  will,  and  acted  in  the  trusts. 

Sands  put  up  certain  premises  to  auction,  and  by  the  sixth  condition 
of  sale  it  was  provided  that  "  every  purchaser  should  accept  and  be  satis- 
fied with  a  conveyance  from  the  trustee  then  acting  in  the  execution  of  the 

*(?«.  "Wauchope. 


728 


LEWIX  ON  THE  LAW  OF  TRUSTS,  ETC. 


trusts  of  the  said  will  and  codicil,  by  tlae  latter  of  which  it  was  declared 
that  purchasers  should  be  effectually  discharged  and  secured  by  the  con- 
veyances, releases,  or  discharges  of  such  trustee." 

Mr.  Nugee  became  the  purchaser,  and  signed  the  agreement,  but 
afterwards  objected  to  the  title,  on  the  ground,  in  the  words  of  the  joint 
opinion  of  two  eminent  conveyancers,  "  that  the  devise  in  the  will  of 
John  Wanchope  to  three  trustees  was  not  a  valid  exercise  of  the  power 
which  authorized  each  of  the  trustees  to  appoint  any  other  person  he 
pleased  to  succeed  himself  in  the  trusts  thereby  created  after  his  own 
decease,  and  that  the  power  which  followed,  to  appoint  any  person  or 
persons  they  pleased  as  joint  trustees,  did  not  apply  to  the  case  which 
had  happened.  That  the  purchaser  was  not  bound  by  the  sixth  condi- 
tion of  sale  to  accept  and  be  satisfied  with  a  conveyance  from  the  acting 
trustee  under  the  will  of  John  Wanchope  as  the  trustee  then  acting  in 
the  execution  of  the  trusts  of  the  will  and  codicil ;  for  it  could  not  be 
intended  to  exclude  the  purchaser  from  objecting  that  the  party  was  not 
a  trustee  authorized  to  act  in  the  trusts."  Sands  filed  a  bill  for  specific 
performance ;  and,  the  master  haviag  reported  that  a  good  title  could  be 
made  "  according  to  the  contract,"  the  defendant  excepted  to  the  report. 
Nugee  was  a  willing  purchaser;  and  the  point  arising  upon  the  power 
was  suggested  to  the  court  without  being  argued.  The  vice-chancellor 
was  of  opinion  that  Sands  had  been  duly  appointed  under  the  power,  and 
overruled  the  exception,  with  costs. 


[*929]  *No.  IX. 

Supra,  p.  707. 
Cases  on  Gifts  to  Relations.  %\ 

In  Thomas  v.  Hole(s)  a  testator  gave  500/.  "  to  the  relations  of  Eliza- 
beth Hole,  equally  to  be  divided  between  them ;"  and  Lord  King  deter- 
mined, that,  as  the  testator  had  directed  the  sum  to  be  divided  cijually 
among  them,  he  could  not  direct  an  unequal  distribution,  and  so  decreed 
the  brothers  and  nephews  of  Elizabeth  Hole  to  take  jicr  capita. 

In  Stamp  v.  Cooke(^)  there  occurs  a  dictum  of  Lord  Kenyon  which 
appears  to  militate  against  this  construction.  « If  the  testator,"  said  his 
lordship,  "  had  given  to  his  next  of  kin,  and  stopped  there,  the  statute 
would  be  the  rule  to  go  by;  and  although  the  nephews  and  nieces  are 
not  in  fact  so  near  as  sisters,  yet  the  fund  would  have  been  distributable 
per  stiqjcs  according  to  the  statute."  But  the  question  to  which  his 
lordship's  attention  was  directed  was,  whether  an  o?t(y  child  of  a  deceased 
brother,  and  an  otdi/  child  of  a  deceased  sister,  should,  per  stirjyes,  repre- 
sent their  deceased  parents,  or  should  be  excluded  altogether  in  favour 
of  brothers  and  sisters  of  the  testator  still  living,  and  who,  as  next  or 
nearest  of  kin,  would  more  nearly  answer  the  description  in  the  will. 

In  Phillips  V.  Garth,(»)  where  the  expression  was  also  "  next  of  kin," 

(«)  Cas.  t.  Talb.  251.  (t)  i  Cox,  236.  (w)  3  B.  C.  C.  64. 


APPENDIX.  729 

a  diflferent  construction  prevailed.  A  testator  gave  his  residuary  estate 
to  liis  executors,  "to  be  equally  divided  by  them  to  and  amongst  his 
next  of  kin,  share  and  share  alike:"  and. Mr.  Justice  BuUer  held  the 
words  "  next  of  kin"  to  mean  the  kinsmen  within  the  statute,^?;)  and 
distributed  the  fund  amongst  the  brothers  and  nephews  per  capita. 
Here,  as  in  Thomas  v.  Hole,  was  the  qualification  ''  equally  to  be 
divided;"  but  jMr.  Justice  Buller  did  not  ground  his  judgment  upon 
that  circumstance,  but  upon  what  he  considered  the  established  practice 
of  the  court.  "  Those,"  he  said,  "  must  take  whom  the  statute  has 
pointed  out;  but  the  question  is,  in  what  shares:  if  it  had  pleased  the 
court  originally  to  say  the  next  of  kin  should  take  in  the  same  manner 
as  under  the  statute,  I  should  not  have  objected  to  it;  for  it  seems  to 
me  they  should  take  ])er  stirpes ;"  and  then  he  cited  a  case,  to  prove 
that  distribution  per  capita  was  a  point  which  the  court  had  now  settled. 
Why  he  should  have  thought  the  objects  might  originally  have  taken  jjcj- 
stirpes  he  docs  not  declare,  but  he  afterwards  added  a  very  substantial 
reason  why  they  should  not,  for  "  it  is  agreed,"  he  said,  "  if  the  testator 
had  given  to  his  next  of  kin  by  name,  they  must  have  taken  per  capita ; 
then  the  question  is,  whether  calling  them  next  of  kin  is  not  equal  to 
naming  them." 

It  was  observed  by  Sir  J.  Leach  upon  one  occasion,  that  Lord  Eldon 
had  disapproved  of  the  distribution  made  in  Phillips  v.  Garth ;  but  this 
remark  will,  upon  reference  to  the  passage  alluded  to,  be  found  to  be 
wholly  destitute  of  foundation.  A  testator  had  given  the  residue  of  his 
estate  '<  to  be  divided  among  his  next  of  kin,  as  if  he  had  died  intestate." 
The  widow  claimed  to  be  one  of  the  next  of  kin,  and  it  was  argued  for 
*her,  that  otherwise  there  would  be  no  meaning  in  the  words  t-^nym 
"as  if  he  had  died  intestate;"  but  Lord  Eldon  answered  the  L  '  J 
argument  by  saying,  "  There  is  another  construction  (that  will  give  a 
meaning  to  these  words.)  I  always  had  great  doubt  upon  the  case  before 
Mr.  Justice  Buller,  who  thought  those  who  were  to  take  per  stirpes  as 
well  as  those  taking  p)er  capita  were  included  (in  the  expression  '  next 
of  kin.')  Lord  Thurlow  doubted  that  upon  this  very  technical  reason- 
ing, to  which  his  lordship  was  much  addicted  in  the  construction  of  these 
instruments,  that  'next  of  kin'  being  the  only  description  (in  the  will) 
without  the  addition,  which  is  in  the  statute,  of  those  who  represent 
them,  the  children  of  the  deceased  brothers  and  sisters  ought  not  to  take 
under  that  bequest.  It  is  very  difficult  to  say  they  would  not  have  taken 
under  this  will  (which  contains  the  words  'as  if  I  had  died  intestate  :') 
my  construction  being  that  the  next  of  kin  should  take  the  whole,  as 
they  would  take  under  an  intestacy. "(?r)  The  meaning  of  the  passage 
therefore  appears  to  be  simply  this,  "  I  do  not  admit  the  argument  for 
the  wife,  that  the  expression  <  as  if  I  had  died  intestate'  would  otherwise 
be  nugatory;  but  for  those  words  I  think  brothers  and  sisters  only  would 
take,  notwithstanding  the  decision  to  the  contrary  in  Phillips  v.  Garth  : 
with  the  addition  of  those  words,  my  construction  of  the  will  is,  that 

(f)  Upon  this  point  the  case  has  been  overruled  bv  Elmsley  v.  Young,  2  M.  & 
K.  Y80. 

(if)  Garrick  v.  Lord  Camden,  14  Yes.  385. 
MAY,  1858.^7 


730       LEW IX  ON  THE  LAW  OF  TRUSTS,  ETC. 

nephews  and  nieces  would  be  entitled  equally  with  the  nearest  of 
kin."(a;) 

We  cannot  cite  a  higher  authority  upon  this  subject  than  the  opinion 
of  Lord  Thurlow.  ''The  term  'relations/"  observed  his  lordship, 
"must  be  confined  to  the  statute;  but  the  court  has  said  in  the  same 
moment,  that  the  claimants  shall  not  always  take  in  the  j^^ojiortions  of 
the  statute,  but  as  the  testator  had  directed;  as  where  there  have  been 
brothers  and  brothers'  sons,  these  last  took  not  hy  representation,  but 
per  capita." [y) 

And  in  conformity  with  this  dictum  was  decided  by  his  lordship  the 
case  of  Rayner  v.  Mowbray. (2;)  A  testator  devised  an  estate  to  A.  upon 
trust  to  sell  and  "to  divide  and  pay  the  proceeds  to  and  among  all  and 
every  such  person  or  persons  who  should  appear  to  be  related  to  the 
testator,  share  and  share  alike."  The  testator  left  three  sisters  surviv- 
ing and  five  nieces,  the  daughters  of  a  deceased  sister,  and  Lord  Thurlow 
directed  the  distribution  to  be  made  among  the  eight  next  of  kin  per 
capita. {a^ 

In  Pope  V.  Whitcombe,(i)  which  was  heard  before  Sir  W.  Grant,  a 
testator  gave  the  residue  of  his  estate  to  his  wife  for  life,  and  directed 
her  to  dispose  thereof  (in  an  event  which  occurred)  "  amongst  the  testa- 
tor's relations  in  such  manner  as  she  should  think  fit."  The  wife  died 
without  having  executed  the  power,  and  the  next  of  kin  at  the  testator's 
death  were  a  brother  and  two  nephews.  The  court,  says  the  reporter, 
decreed  one  moiety  to  the  brother,  and  the  other  to  the  representatives 
of  the  nephews.  The  authority  of  so  great  a  lawyer  as  Sir  W.  Grant 
would  almost  have  decided  the  question;  but,  on  reference  to  the  regis- 
trar's book,  it  appears  a  very  different  order  was  made.  The  two  nephews 
had  died  in  the  lifetime  of  the  widow,  and  at  her  death  the  only  surviv- 
ing next  of  kin  of  the  testator  was  the  brother.  The  brother  died  and 
r*QQn  *^PPoii^ted  executors,  and  the  court  decreed  the  residuary  estate 
L  J  "  to  the  executors  of  the  brother,  the  next  of  kin  of  the  testator." 
Pope  V.  Whitcombe  therefore  is  no  authority  upon  the  point  in  discus- 
sion. 

The  bequest  in  Hinckley  v.  Maclarens(c)  was,  that  the  testator's  pro- 
perty "should  be  equally  divided  among  his  next  of  kin,"  and  Sir  John 
Leach  directed  the  distribution  among  the  next  of  kin  to  be  made  per 
stirpes.  A  similar  decree  was  afterwards  made  by  him  in  the  case  of 
Elmsley  v.  Young. (fZ)  But  the  decision  in  these  two  cases  was  directly 
contradictory  to  Thomas  v.  Hole,  Rayner  v.  Mowbray,  and  Phillips  v. 
Garth.  His  Honor  seems  not  to  have  been  apprised  of  the  point  deter- 
mined in  the  two  former  cases ;  and,  with  respect  to  Phillips  v.  Garth, 
he  laboured  under  the  erroneous  impression,  that  Lord  Eldon  had  ex- 
pressed his  disapprobation  of  that  case.     In  Withy  v.  Mangles,  4  Beav. 

[z)  And  see  Wright  v.  Atkyns,  Coop.  119. 

{y)  Green  v.  Howard,  1  B.  C.  C.  33.  (z)  3  B.  C.  C.  234. 

(a)  For  the  mode  of  distribution  which  does  not  appear  in  the  report,  see  Reg. 
Lib.  B.  1191,  fol.  183. 

(b)  3  Mer.  689.  See  Finch  v.  Hollingsworth,  21  Beav.  112  ;  2  Sug.  Pow.  650. 
6th  Edition. 

(c)  1  M.  &  K.  27.  (d)  2  M.  &  K.  82. 


APPENDIX,  731 

358,  10  CI.  &  Tin.  215,  the  limitation  of  personal  property,  was  on  the 
death  of  E.  M.,  to  her  "  next  of  kin."  E.  M.  died,  leaving  a  father, 
mother,  and  a  child,  and  it  was  held  that  they  took  as  joint  tenants. (1) 


No.  X. 
Allen  V.  Sayer.     Supra,  p.  720. 

"■  The  substance  of  the  plaintiff's  bill  appeared  to  be,  that  Thomas 
Brooke,  Gent.,  deceased,  was  in  his  lifetime  seised  in  fee  of  a  certain 
messuage  or  tenement  called  Drewes,  and  of  several  lands  and  tenements 
thereunto  belonging,  lying  in  the  parish  of  Wanting;  and  was  also  seised 
of  a  certain  parcel  of  land  and  meadow  in  Sutton  Courtney,  in  the 
county  of  Berks,  of  the  yearly  value  of  101.  per  annum  :  and,  having 
no  issue  of  his  body  (the  plaintiff  being  his  near  kinsman,)  did  make 
his  last  will  and  testament  in  writing,  and  after  his  mother's  and  wife's 
decease  did  thereby  bequeath  all  his  real  estate  whatsoever,  in  the  county 
of  Berks  or  elsewhere  (his  debts  being  first  paid,)  unto  the  plaintiff,  his 
heirs  and  assigns  forever,  lawfully  to  be  begotten  ;  and,  for  want  of  such 
issue,  to  the  use  of  Joseph  Brooke,  his  heirs,  &c.;  and  did  give  unto 
his  mother  the  sum  of  BO^.  per  anmim,  for  her  life,  to  be  paid  her  out 
of  his  lands  called  Blackcrofts,  and  did  (^Intcr  alia\  give  unto  John  Col- 
lins, and  his  uncle  Robert  Brooke,  all  his  said  real  estate,  together  with 
his  two  horses,  a  colt,  and  corn  in  the  barn,  on  trust  that  they  should 
(if  occasion  should  be)  not  only  sell  the  said  hay  and  horses  towards  the 
payment  of  his  debts,  but  should  also  sell  his  shop  of  wares  for  and  to- 
wards the  same,  together  with  his  lands  at  Sutton  and  Highgarden  afore- 
said, in  case  his  personal  estate  was  not  sufficient  to  pay  his  debts;  and 
made  his  wife  and  another  executrixes  of  his  said  will.  That  r^nooT 
*shortly  after  making  the  said  will  the  said  T.  Brooke  died  much  L  J 
indebted,  more  than  his  personal  estate  would  amount  to  pay,  by  means 
whereof  his  wife  did,  as  the  executrix,  refuse  to  act  or  intermeddle  with 
the  real  ((in.  personal)  estate ;  and  thereupon  Anne  Brooke,  grand- 
mother of  the  plaintiff,  took  upon  her  the  burthen  of  the  said  will,  and 
thereby  became  entitled  and  entered  into  the  personal  estate  of  the  said 
testator,  and  out  of  her  own  estate,  and  otherwise,  paid  all  the  debts  of 
the  said  testator;  and  about  June,  1688,  the  said  Anne  died.  That  the 
said  plaintiff,  on  the  death  of  his  grandmother,  entered  on  the  lands 
called  Blackcrofts,  and,  as  he  is  advised,  ought  to  have  held  the  said 

(1)  Two  cases  usually  cited  upon  this  subject  have  been  omitted  as  irrelevant 
to  the  point.  In  Masters  v.  Hooper,  4  B.  C.  C.  207,  the  testator  left  two  nepliews 
and  two  nieces,  and  two  great-nephews  and  a  great-niece,  and,  as  there  is  no  re- 
presentation under  the  statute  beyond  brothers'  and  sisters'  children,  the  great- 
nephews  and  great-niece  were  excluded,  and  the  distribution  was  made  per  capita 
among  the  nephews  and  nieces.  Reg.  Lib.  1792.  B.  fol.  209.  In  Lowndes  v. 
Stone,  4  Ves.  649,  a  testator  gave  the  residue  of  his  property  "to  his  next  kin  or 
heir  at  law,  whom  he  appointed  his  executor."  By  "  next  kin  or  heir  at  law"  was 
evidently  intended  some  individual;  but,  as  there  was  no  one  to  answer  the  de- 
scription, the  result  was  an  actual  intestacy.  The  case  docs  not  appear  in  Reo-. 
Lib. 


732  LEWIN    ON    THE    LAAV    OF    TRUSTS,    ETC. 

messuage  called  Drewes,  and  all  other  the  real  estate  of  the  said  T. 
Brooke,  and  to  have  received  the  rents  thereof  accrued  after  the  death 
of  the  said  Anne  the  elder,  his  debts  being  paid  out  of  his  personal  es- 
tate, and  profits  of  his  personal  estate,  and  otherwise.    That  Peter  Sayer, 

about  June,  1688,  did  enter  into  the  house  of  one Gamon,  where 

after  the  death  of  the  said  Anne  Brooke,  the  deeds,  writings,  &c.,  of  the 
estate  of  the  said  T.  Brooke  lay  locked  up  in  an  iron  chest,  and  did  carry 
away  the  said  chest,  and  possessed  himself  of  all  deeds,  writings,  &c., 
that  were  therein.  And  the  said  Peter  Sayer,  on  the  death  of  the  said 
T.  Brooke,  did  enter  into  the  lands  called  Sutton  lands,  and  prevailed  with 
the  defendant,  Curtis,  the  tenant  thereof,  to  pay  his  rent  to  him,  on  giving 
him  a  bond  to  save  him  harmless;  and  the  said  Anne  the  elder,  being 
aged,  did  not  in  her  lifetime  make  any  eflFectual  prosecution  for  re- 
covery thereof;  but  the  plaintiff  is  well  entitled  thereto  by  the  will  of  the 
said  Anne  (qu.  T.  Brooke,)  and  ought  to  have  an  account  of  the  profits 
thereof  since  her  death.  That  the  said  P.  Sayer,  observing  that  Collins 
and  Brooke,  in  whom  the  estate  in  law  of  the  said  Sutton  lands  was  vested, 
would  not  act,  and  the  said  plaintiff  being  then  an  infant  of  ten  years  of 
ago,  and  his  grandmother  aged,  and  not  willing  to  be  engaged  in  a  suit 
for  the  recovery  thereof,  the  said  Peter  having  gotten  into  possession  as 
aforesaid,  did,  together  with  Elizabeth  his  wife,  levy  a  fine  sur  conn- 
zance,  &c.,  and  did  by  some  deed  declare  the  use  of  such  fine  to  be  to 
him  and  his  heirs;  and  afterwards  proclamations  were  had  according  to 
the  statute,  and  after  five  years  passed,  and  no  claim  made  within  that 
time  by  the  said  trustees,  whereby,  at  law,  the  plaintiff  cannot  have  his 
remedy,  the  defendant  threatening  to  set  up  the  fine  and  nonclaim. 
That  the  said  plaintiff  ought  to  be  relieved  against  such  fine  and  non- 
claim,  the  same  being  a  breach  of  trust  in  the  trustees  in  not  making 
entry  before  permitting  five  years  to  pass  after  such  fine.  That  in  case 
the  plaintiff  cannot  have  satisfaction  out  of  the  estate  of  the  said  P. 
Sayer,  yet,  that  the  defendant,  Curtis,  the  tenant  of  the  said  Sutton  lands. 
ought  to  be  accountable  for  the  profits  by  him  received  since  the  death 
of  the  said  testator,  T.  Brooke,  for  that  he  was  acquainted  with  the 
plaintiff's  grandmother's  title,  and  for  that  purpose  took  security  from 
the  said  P.  Sayer  to  pay  his  rent  to  him.  Therefore,  that  the  witnesses 
to  the  will  of  the  said  T.  Brooke  may  be  examined  in  perpetuam  rei  vie- 
moriam,  and  to  discover  the  deeds  of  the  lands  given  by  the  will,  and 
what  other  the  said  P.  Sayer  took  out  of  the  iron  chest;  and  that  the 
same,  and  all  other  deeds,  may  be  delivered  to  the  plaintiff;  and  that 
the  said  defendants  may  account  for  the  profits  of  the  said  Sutton  lands 
received  since  the  death  of  the  said  T.  Brooke;  and  that  the  fine 
and  nonclaim  may  be  set  aside;  and  that  the  defendants  may  dis- 
cover the  personal  estate  of  the  said  Peter  Sayer,(l)  and  what  settle- 
|-^:Qoo-i  *nient  the  said  Peter  Sayer  made  of  his  real  estate  towards  the 
L  -I  payment  of  his  debts,  and  to  be  relieved,  is  the  scope  of  the  bill. 
Whereunto  the  counsel  for  the  defendants  (the  infant  children  of  Peter 
Sayer  and  the  trustees  for  the  children,  and  Curtis,  the  tenant)  insisted 

(1)  He  had  died  before  the  bill  was  filed. 


APPENDIX.  733 

that  Margaret  Brooke,  tlie  infant's  great-great-grandmother,  was,  about 
thirty  years  since,  seised  in  fee  of  the  said  Sutton  lands,  whereby  the 
same  (^inter  alia)  after  the  death  of  the  said  Margery,  descended  unto  Rich- 
ard Brooke  great-grandfather  of  the  defendants,  the  infants ;  and  the 
said  Eichard  Brooke  being  seised  in  fee  of  the  said  premises,  and  having 
several  children,  viz.,  Richard,  his  eldest  son,  who  died  without  issue, 
Thomas,  the  second  son,  under  whom  the  plaintiff  claims,  and  Margaret 
and  Ann,  his  two  daughters,  the  said  Richard,  on  a  treaty  of  marriage 
with  Margaret,  his  eldest  daughter,  to  one  John  Keepe,  did  agree  to  settle 
the  lands  in  questions  {inter  alia^  upon  the  said  Margaret,  and  the  issue 
of  her  body ;  and  accordingly  articles  of  agreement  were  executed  between 
William  and  John  Keepe  on  their  part,  and  the  said  Richard  Brooke  on 
his  part,  whereby  the  said  Richard  did  covenant  to  settle  the  reversion 
and  inheritance  of  all  the  lands  on  the  death  of  Jennings,  the  tenant 
thereof  by  curtesy  which  descended  to  him  from  the  said  Margery,  upon 
the  said  Margaret  for  her  life,  remainder  to  the  heirs  of  her  body,  or  the 
issue  of  that  marriage  ;  and  in  pursuance  of  the  said  articles  the  said 
Richard  did,  by  his  indenture,  settle  the  said  premises  on  the  said 
Margaret  and  her  issue  accordingly.  That  the  said  marriage  soon  after 
took  effect,  and  the  said  Margaret,  had  issue  Elizabeth  Keepe,  the  only 
daughter  and  heir,  who  about  1676  married  the  said  Peter  Sayer.  That 
about  the  year  1665  the  said  John  Keepe  died,  and  afterwards  the  said 
Margaret  his  wife  died,  whereby  the  premises  descended  unto  the  said 
Elizabeth,  and  the  said  P.  Sayer,  being  so  entitled  in  right  of  his  said 
wife,  did,  after  the  death  of  the  said  Jennings,  which  happened  about 
eighteen  years  since,  enter  into  the  said  Sutton  lands  with  other  the 
said  Margaret's  estates,  and,  the  said  Peter  being  in  possession,  they  did, 
in  1678,  let  the  Sutton  lands  to  the  defendant  Curtis,  for  five  years,  at 
4?.  per  annum,  and  gave  him  a  bond  of  200/.  for  his  quiet  enjoyment 
thereof.  That  the  said  Peter  Sayer,  and  his  wife  did,  in  Easter  Term, 
1678,  levy  a  fine  as  in  the  bill,  and  that  they  held  the  same  for  five  years, 
without  any  claim  made  by  the  plaintifi',  and  that  the  said  plaintiff, 
sp.cundo  Gul.  et  Maria',  brought  an  ejectment  against  the  said  Peter 
Sayer,  and  the  defendant  Curtis,  for  the  recovery  of  the  premises,  and 
brought  the  same  to  trial  at  the  Berkshire  assizes,  and  set  up  a  title  under 
the  will  of  the  said  Thomas  Brooke,  and,  after  a  full  hearing,  a  verdict 
passed  in  affirmation  of  the  said  Peter's  title ;  and  the  said  Peter,  being 
minded  to  provide  for  the  defendants  Elizabeth,  and  Peter,  and  John, 
did,  by  deeds  of  lease  and  release,  convey  the  said  Sutton  lands  unto  the 
said  defendants  Elizabeth,  the  grandmother,  Moses  Slade,  William  Button, 
and  Antony  Leaver,  their  heirs  and  assigns,  in  trust  for  himself  for  life, 
and  after  his  decease  to  sell  the  same,  and  the  money  thereby  raised  to 
be  equally  divided  amongst  his  said  younger  children  ;  and  by  virtue  of 
the  said  deeds  the  said  defendants,  the  trustees,  do  stand  seised  of  the 
said  premises  in  trust  for  the  defendants,  the  three  younger  children  of 
the  said  Peter,  who  died  about  2nd  February,  1691.  And  the  said 
defendants  insist  on  the  said  marriage  articles,  fine,  and  nonclaim,  verdict, 
and  continued  possession,  in  bar  of  the  plaintiff's  title  to  the  said  lauds. 
And  the  counsel  for  the  defendant,  Richard  Brooke,  insisted,  that  he  by 


734       LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 

his  answer  saith,  he  is  the  surviving  trustee  named  in  the  said  T.  Brooke's 
*will,  and  that  he  never  acted  therein,  and  disclaims  all  interest 
L  "^  J  of,  in,  or  into  the  said  lands  in  question,  and  is  ready  and  willing 
to  convey  and  assign  his  interest  therein,  as  the  court  shall  direct,  being 
indemnified  by  the  decree  of  the  court  for  so  doing.  Whereupon,  and 
upon  long  debate  of  the  matter,  and  reading  the  will  of  T.  Brooke, 
the  articles  between  John  and  William  Keepe  and  Richard  Brooke, 
dated  the  19th  December,  1656,  and  the  proofs  taken  in  the  cause,  and 
hearing  what  was  insisted  on  by  counsel  on  all  sides,  this  court  declared, 
that  the  said  fine  and  nonclaim  ought  not  to  incur  against  the  plaintiff, 
who  was  then  an  infant,  and  doth  therefore  think  fit,  and  so  order  and 
decree,  that  a  perpetual  injunction  be  awarded  to  stay  the  defendants, 
the  trustees  of  the  said  Peter  Sayer,  and  all  claiming  under  him,  from 
proceeding  at  law  for  the  said  Sutton  lands ;  and  that  the  defendant, 
Robert  Brooke,  the  surviving  trustee  named  in  the  said  T.  Brooke's  will, 
and  the  trustees  of  the  said  Peter  Sayer  deceased,  do  convey  the  said 
Sutton  lands  unto  the  plaintiff  and  his  heirs,  or  unto  whom  he  or  they 
shall  appoint,  and  for  so  doing  they  are  hereby  indemnified;  and  that 
the  said  defendants  do  come  to  an  account  before  Roger  Meredith,  Esq., 
for  the  profits  of  the  said  premises  received  by  them  or  the  said  Peter 
Sayer  deceased,  in  taking  of  which  account  the  said  Master  is  to  make 
unto  the  said  defendants  all  just  allowances ;  and  what  upon  the  said 
account  shall  appear  to  be  due  to  the  plaintiff  for  the  rents  and  profits 
of  the  said  premises  received  as  aforesaid,  the  said  defendants  are  hereby 
ordered  and  decreed  to  pay  the  same  unto  the  plaintiff,  or  unto  whom  he 
shall  appoint  •  but  the  defendants  Jonathan  Sayer,  Leaver,  and  Button, 
are  to  be  charged  no  further  in  reference  to  the  profits  received  by  the 
said  Peter  Sayer  deceased,  than  they  have  assets  of  the  said  Peter.  And 
it  is  further  ordered  and  decreed,  that  the  defendants  do  deliver  to  the 
plaintiff  the  deeds  and  writings  of  all  the  lands  that  belonged  to  the 
said  T.  Brooke,  not  comprised  in  the  said  articles."  Reg.  Lib.  1699, 
A.  f.  502. 


INDEX. 


The  pages  referred  to  are  those  between  brackets  [         ]. 


ABATEMENT, 

of  a  trust,  621. 
ABATOR, 

not  bound  by  a  use,  3. 
ABROAD.    See  Bankruptcij  (Assign- 
ment), Jurisdiction. 
Lands  abroad   (within  the   Queen's 
dominions)  within  Lord  St.  Leon- 
ards' Trustee  Act,  835,  note  (s). 
See  Trustee  Act,  1850,  ss.  54,  56, 
901. 
Parties  to  suit,  as  to  c.  q.  t.  abroad, 

849  ;  as  to  trustee  abroad,  847. 
Personal  estate  abroad,  trust  of,  en- 
forced in  equity,  46. 
Real  estate  abroad,  equities  of,  how 
far  enforced,  47,  et  seq. 
account  of  rents,  foreclosure,  in- 
junction against  taking  posses- 
sion,  relief  against  fraudulent 
conveyance,  sale,  48. 
trusts  of,  when  enforced,  53. 
Receiver  appointed  where  trustees 
all  out  of  jurisdiction,  870;  see  871. 
Residence  of  c.  q.  t.  abroad,  432, 
453. 
of  trustee  abroad,  40 ;  new  trustees 
appointed,  711  5  see  576. 
ACCEPTANCE  OF   TRUST.      See 
Disclaimer. 
Compellable,  is  not,  232. 
Duties  consequent  on,  243,  244;  and 
see  238. 
trustee  must  not  rely  on  co-trus- 
tee, 243. 
must  inform  himself  of  state  of 

trust,  244. 
should  have  inventory  of  chat- 
tels, 244. 
How  made  by  Executor  (see  Execu- 
tor) by  voluntary  interference  with 
assets,  241. 


e.  g.  assigning  lease,  bringing  ac- 
tion, selling  assets,  241. 
(unless  conduct  can  be  clearly  ex- 
plained,) 242. 
by  proving  will,  239,  240. 
executor  of  executor  administer- 
ing to  one  testator  must  to  the 
other,  234. 
who  is  also  trustee  cannot  prove, 
and   renounce   trusts,   even   of 
real  estate,  240. 
may  claim  legacy,  though  he  re- 
nounce, 234. 
How  made  by  trustee:  (1)  by  sign- 
ing deed  ;   (2)  by  declaration  ; 
(3)  by  acting,  237. 
what  acts  constitute,  239,  et  seq. 
by  deed,  238  ;  trustee  should  see 

to  recitals,  ib. 
when  presumed,  237,  242  ;  not  ne- 
cessarily from  taking  possession 
of  trust  deed,  241. 
trustee  of  two  trusts  by  same  in- 
strument having  accepted  one, 
deemed  to  have   accepted  the 
other,  240. 
provable  by  parol,  243. 
Made,  after  being,  trust  cannot  be 

renounced,  289. 
Mistake,  person  assuming  character 
of  trustee  by,  accountable,  244. 
ACCIDENT, 

no  excuse  for  trustee,  if  it  occur  dur- 
ing misfeasance,  766. 
ACCORD, 

no  bar  without  satisfaction,  737. 
ACCOUNT.     See  Abroad,  Alloicance, 
Wilful  Default. 
Decree  for  merely,  not  within  1  &  2 
Vict.  110,  s.  18,  667,  note  (c). 
form  of,  752,  and  see  765,  766. 
Laches,  where  plaintiff  guilty  of,  re- 


736 


LEW  IN    ON    THE    LAW    OF    TRUSTS,    ETC. 


ACCOUNT,  continued. 

stricted  to  filing  of  bill,  751,  756, 
note, 
account  barred  by  between  part- 
ners, 742. 
Of  Mesne  Rents  and  Profits.     See 
Mesne  Bents  and  Profits. 
extent  of,  in  charities,  786,  et  seq : 
constructive   trusts,    750,    752, 
note   (1);   express  trusts,  752, 
note  (1) ;  see  as  to  ignorance  of 
trustee,  751  ;  and  as  to  his  mis- 
take, 790. 
Settled  opening  against  solicitor  trus- 
tee, 550. 
Trustee,  against,  who  has  purchased 
trust  estate,  466. 
who  has  renewed  lease,  224. 
ACCOUNTANT, 

may  be  employed  by  trustee,  556. 
ACCOUNTS, 

whether  c.  q.  t.  may  claim  copies  of, 

599 ;  see  428. 
trustee  should  keep,  of  expenses,  &c., 

559,  599. 
fixed  with  costs  where  confused,  or 
if  trustee  misstate  or  suppress,  877, 
878 
ACCUMULATION.      See  Duration, 
Conversion  (2),  Thellnsson  Act. 
Application  of  income  before  conver- 
sion where  accumulation  directed, 
813,  et  seq. 
Trust  foi-,  must  not  lead  to  a  perpe- 
tuity, 110. 
bad,  if  possibly  exceeding  lawful 

limits,  111,  112. 
but  no  danger  of  perpetuity  where 
rents  applicable  as  vested  inte- 
rest de  anno  in  annum.  111. 
ACKNOWLEDGMENT.     See  Fines 
and  Recoveries  Act. 
What  may  prove  trust,  63,  64. 
ACQUIESCENCE.     See  Time. 

Breach  of  trust  in,  its  effect,  775,  et 
seq.,  see  769. 
Feme  covert  not  bound  bv,  471, 
777. 
secus  as  to  separate  use  without 

restraint,  471,  777. 
qu.  with  restraint,  778. 
fluctuating  body  by,  as  creditors 

or  parishioners,  777;  see  471. 
infant,  not  bound  by,  471,  777. 
Constructive  trusts  in  case  of,  224. 
purchase  in   names  of  stranger, 
207. 
Direct  or  indirect,  737. 
Distinguished  from  waiver,  ib. 
In  improper  loan,  by  receiving  inte- 
rest, 776. 


Requisites  of,  777,  778. 
Stat,  of  Limitation,  does  not  inter- 
fere with  its  effect  in  equity,  748. 
ACT  OF  PARLIAMENT.     See  5t« 

in  Parliament,  Parliament. 
ACTING, 

Trustee,  meaning  of  expression,  578, 
591. 
every  trustee  who  has  accepted 
office  must  be,  298 ;    and  see 
243,  415,  449,  612. 
ACTION, 

Brought  as  to  trust  estate,  must  be 
in  trustee's  name,  18,  269,  591; 
see  275. 
0.  q.  t.  giving  indemnity,  may  require 
trustee  to  lend  his  name  to,  718  ; 
see  591. 
not  where  against  purchaser  with- 
out notice  from  trustee,  719. 
Trespass  of,  on  lunatic's  realty  de- 
frayed out  of  his  personalty,  827. 
Trustee  may  bring,  without  having 
by  writing  accepted  office,  243. 
must  not  bring,  &c.,  after  decree, 
without  sanction  of  court,  524. 
ADMINISTRATION.      See  Assets, 
Bond. 
Durante  minoritate,  834,  note  [h). 
Letters  of,  how  obtained  after  suc- 
cession of  intestacies,  458,  459. 
Mortgagee,  how  he  proves  in  admi- 
nistration suit,  485. 
Order  at  chambers,  856. 
Separate   property   of  feme   covert 
under  her  will,  642. 
ADMINISTRATOR.     See  Executor, 
Relinquisliment   (representative). 
Trustee  Act,  s.  6. 
on  same  footing  as  to  receipts  as 

executors,  316. 
de  bonis  non,  262. 
how  far  safe  to  deal  with  administra- 
tor after  interval  from  intestate's 
death,  458. 
not  properly  a  trustee  upon  renun- 
ciation of  executor  trustee,  240. 
ADMISSION, 

To  Copyholds  (see  Copijliolds,  Cus- 
tomary Freeholds),  effect  of,  249. 
Fine  to  be  paid  by  trustee,  272. 
at  what  rate  where  co-trustees, 

272. 
how  raised,  272,  402. 
Of  debt,  trustees  for  creditors  can- 
not make  after  accounts  taken  by 
court,  522. 
Of  trust  by  defendant,  72  ;  see  63. 
ADULT.     See  Advancement,  Infant. 
ADVANCEMENT, 

Cap  ita  lout  of,  ofinfanfs  legacy,  518. 


INDEX. 


737 


ADVANCEMENT,  contimied. 
if  no  limitation  over,  519. 
or  where  cross  limitations  among 

children,  519. 
power  of,  whether  authorized  by 
executory  trust  silent  as  to  pow- 
ers, 164,  note  (x),  see  165. 
On  purchase,  in  name  of  cldld,  &c., 
207,  et  seq. 
child  as  to,  where  adult,  212,  213  ; 

infant,  209,  212. 
joint  names  in,  of  father  and  child, 

209. 
of  stranger  and  child,  210. 
(but  stranger  quatenus  his  estate 
is  trustee  for  father,)  ib. 
Nature  of  Provision 

as  to  copyholds  for  lives,  succes- 
sive, 210;  see  214. 
personal  estate,  doctrine   applies 

to,  216. 
partial  or  reversionary  estate,  ib., 

209,  212. 
whether  doctrine  applies,  ( 1 )  where 
child  already  provided  for,  211  ; 
(2)   where  father  continues  in 
possession,  212,  213. 
Presumed,    may   be,  for   daughter, 
grandchild,    illegitimate    child, 
nephew,  wife,  216. 
and  sembleeven  for  stranger  where 
purchaser  in  loco  parentis,  ib. 
Presumption,  what  evidence  rebuts 
on  part  of  child,  214. 
whether  parol   declaration  by  fa- 
ther, 214,  215. 
rebutted  by  fact  that  son  is  a  soli- 
citor, 216. 
Purchase  money,  if  not  paid,  a  debt 
from  the  parent,  216. 
ADVANTAGE.     See  Claim,  Lease. 
Trustee  shall  not  derive  from  trust, 
318,  et  seq. 
as  by  buying  up  debts,  from  game 
on   trust  estate,   presenting  to 
living,  being  receiver,  trading, 
&c.,  318,  319. 
application  of  rule  (1)  to  attorney, 
auctioneer,  broker,  commission 
agent,  factor,  solicitor,  319,320; 
(2)  to  executor,  guardian,  trus- 
tee, &c.,  319,  320,  321. 
charity  lease  should  not  contain 
covenant  for  lessor's  private 
advantage,  505. 
trustee  cannot  seek  aid  of  equity 

for  his  own  benefit,  323. 
may  assert  his  legal  right,  seni- 
ble,  324. 
Whether  trustee  may  have  on  failure 
of  c.  q.  t.     See  Failure  of  c.  q.  t. 


ADVERTISEMENTS  by  trustees  sel- 
ling by  auction,  422. 
ADVICE  OF  COUNSEL,  234,  366, 

595. 
ADVOWSON.     See  Presentation. 
Survivorship  of,  between  co-trustees, 

300. 
Trust  of,  for  parishioners,  see  Pa 
rishioners;  and  see  107,  note  [y], 
and  19  &  20  Vict.  c.  50,  authoriz- 
ing sale  of,  ib. 
Trust  to  present  to  within  six  months 

after  vacancy,  527. 
Trustee  presents,  but  must  observe 
direction  of  c.  q.  t.,  269,  318. 
AFFIDAVIT.       See    Payment    into 
Court  (compulsory).  Trustee  Act. 
Material  facts  not  in  issue  brought 
by,  before  the  court  at  hearing, 
869. 
Necessary   for   distringas   under    5 
Vict.  c.  5,  s.  5,  861,  862. 
restraining  orders  under  5  Vict. 
c.  5,  s.  4,  860. 
Trustees  by,  under  Trustee  Relief 
Act,  376,'  note  (s),  378,  note  (y), 
379. 
"AGENCY, 

deed  of,"  483. 
AGENT, 

Accountable  to  trustees  only,  not  to 
c.  q.  t.,  226,  561. 
unless  quasi-trustee  deriving  per- 
sonal benefit,  459  ;   by  accept- 
ing delegation  of  trust,  or  fraud, 
226,  562. 
Auctioneer  is  agent  for  vendor  and 
purchaser,  427  ;  how  after  comple- 
tion, ib. 
Executor,  acting  by  direction  of,  459. 
Lease,  agent  of  trustee  may  not  re- 
new for  his  own  benefit,  220,  225. 
Lien,  agent  has  not  any  upon  trust 
estate  for  charges,  561. 
though  trust  be  to  pay  expenses 
in  first  instance,  ib. 
Party  to   suit,   when  necessary  as, 

844,  848. 
Purchase  by,  in  his  own  name  not 
proveable  by  parol  to  be  for  an- 
other, unless  part  of  consideration 
paid  by  employer,  204;  see  Denial. 
Security,  need  not  give,  295. 
Trustee,afterdisclaimermaybe,  235. 
may  employ  on  proper  occasions, 

556. 
e.  g.  accountant,  attorney,  bailiff, 
collector  of  rents,  556  ;  of  debts, 
557. 
paying  to,  should  see  that  autho- 
rity is  genuine,  372. 


i6t 


LEW  IN    OX    THE    LAW    OF    TRUSTS,    ETC. 


AGENT,  continued. 

how  authority  may  be  gi^en,  3Y2. 
for  sale,  cannot  buy  as  agent  for  an- 
other, 462. 
may  employ  agent,  422. 
but  not  to  buy  for  himself,  462. 
AGREEMENT.     See  Contract. 
Value  for,  to  charge  lands  possessed 
at  particular  time,  or  to  settle  par- 
ticular estate  or  property  acquired 
during  coverture,  raises   implied 
trust,  173,  174. 
Voluntary,  under  seal,  its  effect,  93, 
94,  and  see  note  (e). 
ALIEN, 

Chattels  personal,  alien  enemy  can- 
not hold,  28. 
alien  friend  may,  and  may  create 
trust,  ib. 
Devise   to,  and  to  British  subject, 

upon  trust,  39. 
Husband,  not  entitled  to  curtesy  of 

trust  lands,  621. 
Lands  :  may  acquire  lands  by  pur- 
chase but  not  by  descent  orope- 
ration  of  law,  28. 
purchasing,  may  hold  until  office 

found,  ib. 
cannot  sue  nor  be  sued  touching 
lands,  39  ;  see  Trvst,  inf. 
Proceeds  of  sale  of  real  estate,  may 

take,  43,  807. 
Trust,  how  far  he  can  create,  28. 
as  to  real  estate,  cannot  compel 
its  execution  in  his  favour,  43 ; 
but  see  note  (o). 
forfeitable  to  crown,  without  pre- 
vious inquisition,  43,  132,  677. 
distinction  between  trusts  perfect- 
ed and  in  fieri,  43. 
ALIENATION, 

Charity  estates,  of.     See  Charities 

(Alienation). 
Fettered  by  trusts,  generally  cannot 

be,  132.' 
Limitation  until,  or  limitation  over 
upon  "alienation,"  &c.,  135. 
what  assignment  incurs  forfeiture 
thereunder,  135,  note  (A-). 
Powers,  whether  trustee  can  exercise 
after  alienation  of  estate,  534  ;  and 
see  267,  297. 
Restraint  against  anticipation  as  to 
separate  property  of  feme  covert, 
123,  et    seq. ;    see   Feme  Covert, 
(2). 
ALLOWANCE, 

for  costs  ;  see  Costs,  c.  xxix.  s.  6,  p. 

872. 
Expenses  ;  see  Expenses,  c.  xx.  s. 
2,  p.  557. 


Time  and  trouble;  see  Trouble,  c. 

XX.  s.  1,  p.  545. 
Just  allowances  to   assignee,   557, 
note  (2). 
direction  for,  when  inserted  in  de- 
cree for  account,  752. 
AMERICA, 

property  in,  47 ;  and  see  Jurisdiction. 
ANNUITANT, 

how  far  he  contributes  to  fine  on  re- 
newal of  lease,  223. 
ANNUITIES, 

£3  per  cent,  consols  proper  invest- 
ment of  trust  money,  351. 
ANNUITY, 

trust  money  ought  not  to  be  lent 

upon,  341. 
trustee  of  term  for  securing  when  a 
necessary  party  to  suit,  842. 
ANSWER, 
In  Chancery, 

Limitation,  Statute  of,  how  plead- 
ed by,  734,  738. 
may  serve  as  declaration  of  trust, 

63  ;  and  see  72. 
but  plaintiff  must  read  from   it 
terms  of  trust,  64. 
Feme    covert,  of,   having   separate 

property,  633. 
Payment  into  court,  when  directed, 
on  admission  in  answer,  865,  et  seq. 
Suppression  or  chicanery  in,  visited 
with  costs,  877,  878. 
ANTICIPATION,  RESTRAINT  A- 
GAINST.      See   Alienation,   Feme 
Covert  (2). 
APPEAL,  by  trustee,  from  decree  is 

at  his  own  risk,  368. 
APPLICATION   of  money  paid  on 
sale  to  trustees, 
whether  purchaser,  «fcc.,  must  see  to, 
430,  et  seq.     See  Beceipts. 
APPOINTED, 

property  under  power  when  assets, 
768,  note  [lo] ;  see  775. 
APPOINTEES, 

trustee  for  should  see  that  power  is 
duly  executed,  596. 
APPOINTMENT.     See   Poiver,   Re- 
sulting Trust  (charge), 
of  new  trustees.     See  Keio  Trustees. 
power  of,  authorized  by  "  usual  pow- 
ers" in  executory  trust,  164. 
APPORTIONMENT, 

of  fines  for  renewal,  395,  et  seq.    See 
Renetcable  Leaseholds. 
APPROPRIATION, 

of  legacy  by  executor  permitted  with- 
out suit,  517. 
ARBITRARY  POWERS.    See  Pow- 
ers,  538,  et  seq.,  694,  et  seq. 


INDEX. 


739 


ARBITRARY  POWERS,  continued. 
trustee  appointed  by  court  cannot 
exercise,  712. 
ARREARS.     See  Mesne  Rents,  T50, 
752,  note  (1). 
Of  interest  or  rent,  recoverable  under 
Limitation  Act,  744 ;  see  751, 
754,  note, 
the  whole  in  case  of  express  trust, 

748. 
or,  where  there  is  a  term  under 
which  trustee  may  obtain  pos- 
session, 749. 
what  recoverable,  where   trustee 
ignorant  of  his  true  character, 
751. 
what  recoverable  in  case  of  fraud, 
&c.,  756,  note. 
Of  pin-money,  644. 
Of  separate  estate,  642. 
ARTICLES.     Marriage,  construction 
of  executory  trusts  in.     See  Exe- 
cutory Trusts,  1 46,  et  seq. 
notice  of,  how  far  binding  upon  pur- 
chaser, 727. 
parties  to  suit  for  specific  perform- 
ance of,  844. 
ASSETS.       See    Executor    (Assets), 
Failure  of  c.  q.  t.,  Feme  Covert, 
(Executrix),  Judgment,  c.  xxiii. 
s.  11,  p.  681. 
Appointed    estate,    under    general 
power  is  assets,  768,  note  {w). 
secus   where   donee   of  power   is 
feme  covert,  except  where  fraud, 
ib.,  and  see  775. 
copyhold,  formerly  not  assets.  See 
Exception,  661,  note  (1). 
Equitable,  what  are,  686,  687  ;  see 
692. 
land  devised  upon  trust  for  pay- 
ment of  debts,  686;  and  see  488. 
separate  property  of  feme  covert, 

642. 
whether  equity  of  redemption  of 
term  legal  or  equitable  assets, 
687,  688. 
trust  of  chattels,  id.,  685,  et  seq. 
of  fee,  id.,  688. 
Equity  of  redemption,  whether  as- 
sets, 684,  685. 
Money  to  be  laid  out  in  lands  not 

considered  personal  assets,  796. 
Trusts  of  chattels  are  assets,  681. 
whetherof  freeholds  before  Statute 
of  Frauds,  681  ;  see  685. 
the  Act  did  not  extend  to  com- 
plicated trusts,  &c.,  684,  685. 
under  late  statute  3  &  4  W.  4,  c. 
104,  691,  692  ;  see  796,  and  list 
of  statutes. 


ASSIGN, 

bound,  whether  in  the  per  or  post 
by  a  trust,  19,  279,  280. 
except  pui'chasers  for  value  with- 
out notice,  279,  725. 
originally  not  bound  by  a  use,  3. 
when  assigns  can  execute  power  of 
sale  in  mortgage,  419. 
can  execute  trust,  266,  et  seq., 
297,  450,  533,  712. 
ASSIGNEE.     See  Purchaser,  Volun- 
teer. 
of  equitable  interest,  729. 
ASSIGNEES  OF  BANKRUPT.    See 

Bankruptcy. 
ASSIGNMENT, 

Equitable   interest,   of,  how   made, 
600  ;  and  see  604  et  seq. ;  and 
see  Deed,  Notice. 
formerly  not  permitted,  5. 
when,  to  whom,  and  how  notice 
should  be  given,  612,  613;  see 
327. 
Feme  covert,  by,  of  separate  proper- 
ty, see  632. 
Fund  in   court,   of,    what  inquiries 

and  notice  proper,  613,  614. 
Legal  estate,  of,  effect  of  upon  pow- 
ers of  trustees,  267,  et  seq.,  297  : 
see  533,  712. 
Tenant  in  tail,  by,  601,  et  seq. 
LTse,  of  a,  not  permitted,  4. 
AT  HOME, 

money  to  be  laid  out  on  land,  where 
so  considered,  800,  et  seq. ;  see  823. 
ATTAINDER.     See  Forfeiture. 
ofc.  q.  t.,  323,  674,  et  seq. 
of  trustee,  287. 
ATTENDANT  TERM, 

attended  inheritance  gained  by  dis- 
seisin, 288,  note  (1). 
trust  of  followed  devolution  of  free- 
holds, 131. 
ATTESTED  COPIES, 

when  given  by  assignees  of  bank- 
rupts and  trustees  for  sale,  425. 
ATTORNEY, 

Allowance,  attorney,  when  trustee, 
has  none  for  time  and  trouble,  only 
for  expenses  out  of  pocket,  549  et 
seq. ;  see  Solicitor. 
Appointment   of,   or  proxy,  distin- 
guished from  delegation  of  trust, 
297. 
Breach  of  trust,  advising  or  concur- 
ring in,  763,  note  (s). 
Constructive  trust  in  case  of  violat- 
ing his  duty,  226. 
Infant  cannot  be  in  suit,  36  ;  may,  to 

deliver  seisin,  36. 
Trustee  may  employ,  556. 


740 


LEW  IN    ON    THE    LAW    OF    TRUSTS,    ETC. 


ATTORNEY,  continued. 

should  not  allow  moneys  to  lie  in 
the  hands  of,  295. 
Potcer  of.     See  Infant. 
dividend,  to  receive,  594. 
forged,  372  ;  trustee  should  see  to 

authenticity  of,  ib. 
how  to  be  qualified  in  assignment 
of  chose  in  action  by  trustee,  426. 
ATTORNEY-GENERAL, 

Compromise  with,  allowed  in  case  of 

charities,  789. 
Information  is  in  name  of,  779. 
Petition  under  Romilly's  Act,  his  al- 
lowance of,  782. 
he  must  be  a  party  to  proceedings 

undei-,  783. 
may  correct  his  judgment,  783. 
ATTORNMENT  of  tenant,  whether  it 

works  disseisin,  721. 
AUCTION, 

trustee  cannot  purchase  trust  estate 

at,  461  ;  and  see  876. 
trustees  may  sell  by,  422,  423. 
AUCTION  DUTY.     See  424. 
AUDITOR,  101.     See  Receiver. 
"AUTHORIZING    AND   EMPOW- 
ERING," 
may  raise  a  trust,  168. 
AUTHORITY, 

bare,  to  several,  determines  by  death 

of  any,  299. 
to  receive  moneys,  how  given  by  c. 
q.  t.,  372. 
AVERMENT, 
Trust  of,  permitted  at  common  law,  56. 
not  upon  a  bequest,  59  ;  how  far 

as  against  an  executor,  ib. 
not  upon  a  devise  even  at  common 

law,  58. 
not  in  contradiction  to  trust  ex- 
pressed or  implied  upon  written 
instrument,  57  ;  see  Considera- 
tion, Pension. 
not   where   deed  is   necessary  to 
pass  legal  estate,  57. 
Use  of,  56,  57;  see  6,  note  (1). 

BAILIFF, 

infant  cannot  be,  36. 

mortgagee  or  trustee  may  employ, 
556. 
BANK, 

Co-trustees,  where  safe  to  pay  trust- 
moneys  to  their  joint  account  at 
some  bank,  830. 

Failure  of,  where  trustees  liable  for, 
333,  336. 

Notes  treated  as  cash,  757  ;  whether 
ear-marked,  274,  757,  758. 

Trust-money   may  be  deposited   in 


temporarily  to  trust  account, 
332,  et  seq. 
not  otherwise,  336  ;  nor  out  of 
trustee's  control,  334. 
paid  into,  to  trustee's  private  ac- 
count, presumed  to  be  traded 
with,  361. 
how  followed,  760. 
may  be  transmitted  through  bank, 
295. 
but  payment  should  be  to  trust 
account,  296,  333,  336. 
BANK    OF    ENGLAND.     See   Dis- 
tringas, Stock,  Trustee  Extension 
Act,  ss.  6,  7,  p.  905,  note  {g). 
Annuities,  351. 
Costs  of,  33. 

Incorporated,  when,  32,  note  (1). 
Parties,  as  to  making  bank,  33,  note 

(h),  859. 
Stock,  whether  trustees  may  invest 

on, 341. 
Transfer,  bank  will  not  usually  allow 

unto  more  than  four  names,  41. 
Trustee,  bank  cannot  be,  32. 
BANKER, 

not  accountable  for  sale  of  stock  by 
executor's  order,  even  where  mis- 
application probable,  459. 
BANKRUPT.     See  Bankr^qjtcy. 
Property  of,  up  to  certificate  vests 

in  assignees,  29. 
Trust,  bankrupt  may  create  of  sur- 
plus after  payment  of  debts,  ib. 
Trustee,  a  bankrupt  is  not  absolutely 
disqualified  to  be,  40. 
his  bankruptcy,  ground  for  appoint- 
ment of  receiver,  870;  and  comp. 
711. 
BANKRUPTCY, 

"Alienation,"  clause  divesting  pro- 
perty on,  does  not  extend  to  bank- 
ruptcy, 135. 
Assignees,  action  against,  in  whose 
name  it  must  be,  275. 
in  case  of  factor,  ib. 
bankrupt  trustee  of,  when  they  may 
have   contribution   against   co- 
trustee, 773. 
interest,  charged  with,  for  balances 

improperly  retained,  359. 
just  allowances  to,  557,  note  (z). 
taking  legal  estate,  bound  by  trust, 

280  ;  see  276. 
may  not  generally  purchase  bank- 
rupt's estate,  465. 
what  trust  estates  they  take,  see 

Trust  Estate,  inf.,  273,  et  seq. 
see  Maintenance,  inf. 
Assignment,  by  trader,  of  whole  pro- 
perty, an  act  of,  477. 


INDEX. 


741 


BANKRUPTCY,  continued. 

so,  of  all  but  colourable  part,  or 
necessary  stock  in  trade,  477. 
even  where  trust  for  all  credi- 
tors, or  notwithstanding  pro- 
viso avoiding  it,  or  not  intend- 
ed to  be  acted  on,  477,  478. 
or  where  bankruptcy  the  object 
ofit,  478,  479. 
but  good,  (1)  where  no  existing 
debts,  (2)   as  between  parties, 
(3)  as  concerns  bona  fide  pur- 
chaser, 478. 
upheld  when  facilitating  arrange- 
ment with  creditors,  478. 
becoming  valid  under  late  Bank- 
ruptcy Act,  479,  480. 
creditors   acquiescing  in,  cannot 

treat  it  as  act  of,  479. 
if  not  enforceable,  is  not  an  act  of, 

479. 
executed  abroad,  479. 
by  trader,  of  part  of  property,  not 
an  act  of,  477,  note   [iv),  480. 
unless  he  contemplated  bank- 
ruptcy, 480. 
Certificate  under,  bars  trust  debts, 
772  ;  but  bankrupt  trustee  should 
see  proof  made,  ib.;  see  29. 
District  Courts  of,  their  jurisdiction 
in  charities  whose  income  under 
30Z.,  718,  note  (6),  784. _ 
Equity  to  settlement,  of  feme  covert 

as  against  assignees,  369,  370. 
Limitation  over,  on,  or  until,  135,  et 
seq. 
trader  cannot  so  limit  over  his  own 

property,  136. 
except  to  extent  of  portion  received 
with  wife  on  marriage,  ib. 
Maintenance,  trust  for  at  discretion 
of  trustees,  how  far  assignees  take 
under,  133,  134. 
New  trustee  may  be  appointed  on 
bankruptcy  of  trustee,  276,  711. 
how  under  Bankruptcv  Act,  714, 
715. 
Order  and  disposition,  of  bankrupt, 
277. 
trust  chattels,  in  hands  of  bank- 
rupt executor,  factor,  or  trustee, 
are  not  within,  277,  278. 
secus,  where  executor  has  assumed 
to  be  absolute  owner,  277. 
as  to  c.  q.  t.  absolutely  entitled 

and  bankrupt,  278. 
as  to  c.  q.  t.  tenant  for  life  and 
insolvent,  594. 
Parties  in  suits,  assignees  can  sue, 
&c..  without  presence  of  creditors, 
843. 


Proof  under,  where  estate  amalgama- 
ted with  that  of  bankrupt,  276. 
for  breach  of  trust,  against  estate 
of  bankrupt  trustee,  with  inte- 
rest, 771. 
where  stock  improperly  sold,  357, 
772. 
money  laid    out  on  mortgage, 

772. 
investment  in  improper  securi- 
ties, 772. 
bankrupt  trustee  interested  in 
trust  fund,  set-off  made,  772. 
bankrupt  trustee  one  of  several 
co-trustees,  772,  773. 
eEFect  of  release  given  to  one  co- 
trustee, 773. 
where  co-trustees  severally  bank- 
rupt, 773. 
by  mortgagee,  485. 
made    by   trustee,   except  where 
trust  is  simple,  269. 
genei'ally  all    co-trustees    must 

make,  298. 
bankrupt  trustee,  how  far  liable 
in  equity,  if  he  does  not  make, 
notwithstanding     certificate, 
773. 
Trustee  of.     See  Proof,  sup.,  c.  xi. 
s.  2,  p.  273. 

ground  for  appointment  of  re- 
ceiver, 870. 
trading  as  such,  liable  to,  272. 
Trust  estate,  on  clear  trust,  does  not 
pass  to  assignees,  274. 
though  tortiously  converted,  if 
capable  of  being  identified, 
274,  275. 
or  if  money  payable  at  future 
day,  275. 
whether  legal  estate  passes  to  as- 
signees when  bankrupt  has  bene- 
ficial interest,  276. 
or  where  trust  doubtful,  ib.,  and 
see  Proof,  sup. 
BAR, 

to    equitable    relief,    731,    et   seq. 

See  Limitation  of  Suit. 
in  charitable  trusts,  786,  et  seq. 
BARGAIN  AND  SALE, 

for    nominal     consideration    would 
not  now  be   enforced  by  way  of 
constructive  trust,  96. 
BENEFICE,     See  Adancson,  Presen- 
tation. 
BENGAL, 

Government  notes,  "lands"  within 
Lord  St.  Leonards'  Trustee  Act, 
835,  note  {q). 
BEQUEST.     See  Legacy,  Legatee. 
Personal  estate  of,  how  made  accord- 


742 


LEW  IN    OX    THE    LAW    OF    TRUSTS,    ETC. 


BEQUEST,  continued. 

ing  to  Statute  of  Frauds,  65;  how 
under  present  law,  80. 

passed  proceeds  of  land  subject 
to  trust  for  conversion,  807. 
Residuary.   See  Residuary,  Bequest. 
"BESEECHING," 

may  raise  a  trust,  168. 
BILL  IN  CHANCERY.     See  lafor- 
mation. 
Appointment  of  new  trustees,  bill  or 
claim  for,  583. 
not  necessary  where  suit  pending, 

ib. 
as  to  cases  provided  for  by  Trustee 
Act,  Y13,  714,840. 
by  Bankruptcy  Act,  714. 
by  Charitable  Trusts  Act,  718, 
notes  (b)  and  (c)  ;  and  see 
New  Trustees. 
Declaration  of  trust,  whether  suffi- 
cient to  prove,  63,  note  [u). 
Filing,  where  co-trustee  should  file, 

317. 
trustee  may  file  where  equities  doubt- 
ful, 367,  et  seq. ;  see  also  376,  note 
(r) ;  and  see  Special  Case. 
Prayer  of,  omitting  to  pray  for  inte- 
rest, 359. 
for  account  of  rents,  752. 
BILL  IN  PARLIAMENT, 

application    for,   by  trustees,    516, 

and  see  p.  499. 
opposition  to,  by  trustees,  515. 
BILL  OF  EXCHANGE, 

distinguished  from  money  and  bank 

notes,  758. 
followed  in  equity  when,  ib. 
whether  trust  money  may  be  trans- 
mitted, by,  295,  296. 
BONA  VACANTIA,  198,  324.     See 

Crown, 
BOND, 

Administration  bond,  458 ;  Cohabi- 
tation bond,  138,  note  (x). 
Given  by  trustee  for  due  execution 

of  trust,  290. 
Indemnity  of,  see  721  :  whether  trus- 
tee should  take,  367. 
on  appointment  of  new  trustee, 
580,  581. 
Judgment,  on  effect   of  obtaining, 

659,  660,  and  note  [h). 
Penalty  in,  creditor  cannot  claim  be- 
yond, 491. 
BREACH  OF  TRUST.     See  5ohc7, 
Payment  into  Court,  Receiver. 
Charities,  remedy  for   breaches   of 
trust  in,  502,  778.     See  Charities. 
Generally,  co-trustee  allowing  may 
be  removed,  711. 


duty  of  in  case  of,  317. 
Receipt  of  trustee  known  to  contem- 
plate, 331 ;  of  executor,  458. 
after  breach  of,  450. 
Retire,  trustee  should  not,  in  favour 

of  one  who  contemplates,  580. 
Sale  cannot  be  enforced  in  breach 

of,  415. 
Solicitor  wilfully  advising  or  concur- 
ring in,  liable  to  be  struck  off  the 
roll,  763,  note  {s). 
Liability  incurred  in  certain  cases 
by  allowing  destruction  of  con- 
tingent remainders,  409. 
by  neglect  of  trustee  to  enforce 
covenant,  765;  to  insure,  764; 
to  purchase  stock,  764;  where 
trustees  have  discretion  of  in- 
vesting on  stock  or  real  securi- 
ty, 355,  764  ;  to  renew,  392. 
bv  purchasing  trust  estate,  465, 

"469. 
when  tortious  sale  by  trustee  of 
land,  763  ;  of  stock,  356 ;  and 
see  Bankruptcy,  Proof  in. 
trustee  liable  even  where  loser  by 
breach,  765. 
not  excused  by  accident  in  case 

of  misfeasance,  766. 
cannot  set  off  gain  in  one  trust 
fund  against  loss  in  another, 
766. 
not    charged    with    imaginary 
values,  or  more  than  he  re- 
ceived,  except   where   great 
negligence,  &c.,  ib. 
Nature  of  liability, 

a  simple  contract  debt,  238,  765. 
unless   trustee  accepted  under 
hand  and  seal,  ib. ;  but  deed 
must  contain  words   equiva- 
lent to  covenant  and  be  exe- 
cuted by  trustee,   239 ;   and 
see  note  [y). 
where  co-trustees,  joint  and  seve- 
ral, 767,  772. 
Protection  against, 

c.  q.  t.  may  have  administration 
of  trust  confided  to  proper  num- 
ber of  proper  persons,  710,711. 
may   compel  trustee    to   observe 

duty,  718,  et  seq. 
mav  restrain  trustee  from  breach 
of  duty,  723. 
Remedy  for, 

(a)  By  following  trust  estate  into 
hands  of  stranger,  c.  xxvi. 
s.  1,  p.  724. 
into  hands  of  purchaser  with 
notice  or  volunteer,  725. 
See  Purchaser,  724,  et  seq. 


INDEX. 


743 


BREACH  OF  TRUST,  continued. 
not  in  case  of  disseisor,  287. 
case  of  charity,  726. 
notice  of  doubtful  equity,  727. 
purchaser  without  notice.     See 

Purchaser ^1  725,  et  seq. 
purchaser  of  equitable  iutei'est 

or  chose  in  action,  729. 
time  within  which  estate  may 
be  followed,  729.     See  Limi- 
tation. 
(&)  By  following  property  substi- 
tuted for  trust  estate,  c.  xxvi. 
s.  2,  p.  753. 
where  conversion  tortious,  c.  q. 
t.  has  lien  as  against  trustee, 
or  those  who  represent  him  in 
right,  756. 
case  of  assets  employed  in  trade, 
760. 
Bank   notes,    bills,   &c.,   757, 

758;  see  759. 
land.     See  Money,  inf. 
money,  757,  758. 
invested  by  trustee  in  land, 
762;  see  757. 
where  trust  money  is  only 
part  of  purchase  money, 
c.  q.  t.  has  lien  for  trust 
money  and  interest,  763. 
where  the  entirety  of  pur- 
chase money,  c.  q.  t.  may 
take  the  land  itself,  sem- 
ble,  763;  see  note  [q). 
mixed  with  trustee's  money, 
c.  q.  t.has  lien  on  the  whole, 
759. 
paid  into  bank  to  simple  ac- 
count with  trustee,  760,761. 
(c)  Personal,  c.  xxvi,  s.  3,  p.  763. 
against  corporation,  763;  corpo- 
rators, co-trustees,  767,  768 ; 
see  773. 
person  assuming  office  of  trus- 
tee, 765. 
trustee,  763,  et  seq.;  for  des- 
troying contingent  remain- 
der, 406,  409,  and  see  410; 
improper  lease,  507  :  impro- 
per sale,  415,  428  ;  improper 
purchase  by   trustee,    465 ; 
neglect  to  renew,  392. 
representative  of  deceased  trus- 
tee, 765. 
unless  trustee  has  distributed 
assets    under    sanction    of 
court,  765. 
legatees  or  next  of  kin  of  de- 
ceased trustee  where  assets 
distributed,  765. 
trustee   primarily  liable,   but 


has  his  remedy  against  c.  q. 
t.  gaining  by  breach  of  trust, 
392,  768,  see  note  (w). 
account  of  mesne   rents  and 
profits  when  against  trustee, 
752  ;  see  224,  466. 
by  proof  in  bankruptcy,  against 
bankrupt  trustee,  357,  771, 
772. 
in    case  of  co-trustees,    773. 
And  see  Bankruptcy,  Proof 
in. 
by  stopping  pai'tial  interest  of  c. 
q.  t.  who  concurs  in  breach, 
771  ;  and  see  353,  392,  846. 
[d)  how  bai-red. 

by  conduct  of  c.  q.  t. 
by  acquiescence,  471,  775,  et 
seq. ;  concurrence,  773,  et 
seq. ;  confirmation,  472,  777  ; 
release,  777.  And  see  these 
titles  and  Limitation  oj' Suits. 
BROKER,  319. 

of  trustee,  improperly  disposing  of 
Exchequer  bills,  342,  note  {t). 
BUILDING  LEASES. 

of  charity  estates,  duration  of,  510. 
with  consent  of  commissioners,  504, 
511. 
BUY  IN. 

assignees  of  bankrupts  and  trustees 
for  sale  not  authorized  to,  423. 
BUY  UP.     See  Mortgagee. 

trustee  cannot  buv  up   incumbrance 
for  himself,  318. 
BYE  LAWS. 

power  of  making,  will  not  authorize 
deviation  from  original  intention 
of  charity,  498. 

CANAL  SHARES. 

bequeathed  in  succession,  converted, 
812. 
CAPRICE, 

court  does  not  act  on,  699. 

of  c.  q.  t.,  trustee  not  dismissed  from, 
712. 

of  trustee,  583,  875. 
CATHOLIC. 

Roman.     See  Papistry  Acts. 
CESTUI  QUE  TRCST.     See  Chari- 
ties, Costs,  Estate  Tail,  Feme  Cov- 
ert, Infant,  Lien,  Liability,  Par- 
ties, Tenant  for  Li  fe. 

Account,  right  of  c.  q.  t.  to  have. 
See  Accounts,  Mesne  Rents  and 
Profits. 

Acquiescence  of.  See  Acquiescence, 
471,  775,  et  seq. 

Actions  by  c.  q.  t.     See  Actions. 

Assignment,  how  c.  q.  t.  may  make, 


744 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


CESTUI  QUE  TRUST,  continued. 
of  equitable  interest,  c.  xxiii.  s.  1. 

600. 
c.  q.  t.  may  assign  even  a  possi- 
bility, and  without  intervention 
of  trustee,  600  ;  and  see  Assign- 
ment, Notice. 
Bequest  by,  617. 

Breach  of  Trust.     See  Concurrence, 
Protection,  and  liernecli/,  inf.,  and 
Breach  of  Trust. 
Chattels,  c.  q.  t.  entitled  to  posses- 
sion of  trust  chattels  during  his 
interest,  593,  594  ;  case  of  chat- 
tels in  possession  of  bankrupt, 
c.  q.  t.  for  life,  ib.;  see  277,  278. 
whether  c.  q.  t.  may  let  them  for 
hire,  594. 
Concurrence  of,  771,  773,  846.     See 

353,  392,  and  Concurrence. 
Confirmation  by,  472,  777.  See  Con- 

firmation. 
Consent  of.     See  Consent. 
Conveyance,   when  c.    q.   t.  should 
join  in,  427.     See  881,  note  (ft), 
when  and  how  c.  q.  t.  may  require 
trustee  to  make,  595,  596  ;  and 
see  600,  Conveyance. 
Devise  by,  615,  et  seq. 
Dividends,  c.   q.   t.  usually  put   in 
possession  of,  by  power  of,  attor- 
ney, 594. 
Ejectment,  c.  q.  t.    cannot  recover 
real  estate  in,  591. 
unless  surrender  can  be  presumed, 
ib. 
must  bring  his  action  in  name 
of  trustee,  591. 
Estate  of, 

under  simple  trust,  c.  xxii.  s.  1, 

585. 
special  trust,  c.  xxii.  s.  2,  597; 
and  see  Special  Trust,  inf. 
properties  of.     See  Trust. 
Failure  of.     See  Failure. 
Fraud  of,  39,  774.     See  Fraiul. 
Ignorance  of,  472,  737.     See  Igno- 
rance. 
Inquiries  to  ascertain  cs.  q.  t.,  598. 
of  c.  q.  t.    trustee    must  answer, 
427,  599. 
jus  habendi  and  jus  disponendi  of, 

585,  595. 
Laches  of.     See  Ladies. 
Pernancy  and  profits  of  trust  estate, 

c.  q.  t.  entitled  to,  585,  et  seq. 
Possession  of  chattels  by  c.  q.t.   See 
Chattels,  Dividends,  sup. 
of  real  estate  by  c.  q.  t. 

where  trust  simple,  c.  q.  t.  will 
be  put  in  possession,  585. 


cases  where   other  interests 
affected,  586,  et  seq. 
of  c.  q.  t.  subject  to  a  charge.        j 

586. 
of  feme  covert  entitled  for 
separate    use,    590 ;    see 
589. 
c.  q.  t.    entitled   to,    in   equity 
only,  590. 
is  at  law  tenant  at  will,  590  : 
see  Ejectment,  sup. 
Privileges  of  to  be  juror,  592. 

if  in  possession  to  vote  for  coro- 
ner, 269  ;  but  qu.,  592,  593. 
to  sport ;  to  vote  for  member  of 
Parliament,  593  ;  see  270. 
Protection  of,  c.  q.  t.  may  compel 
trustee  to  observe  acts  of  duty, 
718,  et  seq. 
may  enforce  trust,  597. 

may  have  proper  trustees,  710, 
711.     See  Neiv  Trustees. 
trust  money  paid  into  court  in 

what  cases,  864,  et  seq. 
receiver    appointed,  in    what 
cases,  869,  et  seq. 
in  case  of  tenant  for  life  re- 
fusing to  renew,  722. 
may  restrain  trustee  from   breach 

of  duty,  723. 
security  ordered  from  trustee,  723. 
may  have   contingent  interest  se- 
cured, 723  ;  see  865,  868. 
Real  estate  of.     See  Ejectment,  sup. 
Release  by.     See  Release. 
Remedy  of,  for  breach  of  trust.    See 
Breach  of  Trust,  Mesne  Rents. 
Payment  into  Court,  and  Recei- 
ver, and  Protection,  sup. 
by  following  trust  estate  into  hands 
of  stranger,  c.  xxvi.  s.  1,  724, 
et  seq. 
by  following  property  into  which 
trust  estate  has  been  converted, 
c.  XXVI.  s.  2,  p.  753. 
personal  against  trustee,  &c.,  e. 

XXVI.  s.  3,  763. 
for  tortious  conversion,  825.     See 
Conversion. 
Share,  aliquot,  c.  q.  t.  of,  850,  865. 
Simple  trust,  c.  xxii.  s.  1,  585. 
Special  trust,  c.  xxii.  s.  2,  597. 
each  c.  q.  t.  entitled  to  enforce  to 

extent  of  his  interest,  597. 
where  trust  lawful,  599. 
where  one  c.   q.  t.,  or  all  unani- 
mous, special  trust  becomes  a 
simple  trust,  597. 
special  trust  proceeds  until  c.  q. 
t.'s  election  know,  598;  and  see 
Special  Trust. 


INDEX. 


745 


CESTUI  QUE  TRUST,  continued. 
Title  deeds,  how  far  c.  q.  t.  has  right 

to  custody  of,  591,  592. 
Trustee,  whether  c.  q.  t.  may  be,  40. 
Who  may  be  c.  q.  t.,  c.  xii.  s.  3, 

41 ;  and  see  Alien,  Crown. 
Vouchers,  c.  q.  t.  may  inspect,  but 
pays  for  copies  of,  428  ;   see  599. 
Will,  c.  q.  t.  may  dispose  of  his  equi- 
table intei'est  by,  Gla,  et  seq. 
CHAMBERS, 

administration  order  at,  856. 
jurisdiction  of  chancery  judges  at,  in 
case    of    charities — with   income 
over  £30,  718,  and  note  (6),  or  of 
City  of  London  charities,  784. 
CHANCELLOR, 

his  jurisdidtion  over  lunatics  and 
idiots,  how  derived,  835,  note  {p) ; 
see  827.  See  as  to  jurisdiction  of 
lords  justices  under"  Trustee  Act, 
883,  note  (e). 
may  in  certain  cases  be  visitor,  495. 
CHANCERY, 

alone  has  jurisdiction  of  trusts,  19. 
its  jurisdiction  over  corporate  bodies, 
493,  495. 
CHAPEL, 

Endowment  of,  how  transmissible  at 

law,  105. 
Minister  of,  in  case  of  dissenters,  may 
be  dependent  on  will  of  congre- 
gation, 498. 
how  elected,  where  no  directions 

in  deed  of  endowment,  ib. 
in  possession,  retained  till  cause 

heard,  ib. 
tenant  at  will,  of  trustees,  ib. 
Trusts  of,  trustees   cannot  change, 

496. 
Trustees  of,  how  appointed  where  no 
direction  in  deed  of  endowment, 
498. 
CHARGE, 
Debts  or  legacies  of  in  will,  raises 

implied  trust  in  devise,  &c.,  173. 
■where  it  implies  power  of  sale,  251 ; 
see  248,   and   440,   et  seq.     See 
Receipts  (Charge  of  Debts.) 
Devise  by  trustee  in  general  terms, 
its  operation  on,  263. 
does  not  prevent  legal  fee  in  mort- 
gage from  passing  under  "  secu- 
rities" for  money,  264. 
on  devise  distinguished  from  excep- 
tion from  devise,  191,  et  seq. 
Distinguished  from  partial  declara- 
tion of  trust,  179  ;  and  see  Result- 
ing Trust. 
Duplication  of,  167. 
Limitation,   late    statute    of,    mere 
May,  1858.— 48 


charge   not    an    express    trust 
within,  746. 
secus  as  to  charge,  coupled  with 

duty,  746,  747. 
not  barred  by,  whilst  secured  by 
unbarred  term,  747. 
Power  to,  not  a  usual  power,  165. 
CHARGING  ORDER,  under  1  &  2 
Vict.  c.  110,  669,  671.     See  Judg- 
ment. 
CHARITABLE  TRUSTS  ACT.   See 
Charity  Commissioners,  bQ4:,  511, 
784. 
Amendment  Act,  785. 
CHARITABLE  USES, 

Frauds,  Statute  of,  within,  61. 
Purchaser  without  notice  from  pur- 
chaser with,  bound  by,  726. 
Statute  of,  commission  under,  779. 
CHARITIES.  See  Information,  Mort- 
main, Visitor. 
Account,  786,  et  seq.     See  Remedy, 

inf. 
Administered    by   trustees,    where, 

492. 
Alienation,  of  charitable  property  by 
trustees,  not  permitted,  502. 

whether  absolutely,  or  for  re- 
served rent,  503. 
or  by  granting  long,   renew- 
able, or  reversionary  terms, 
ib. 
permitted  under  special  circum- 
stances,   503,   515,   782 ;    see 
note  {lo). 
and  leases,  sale,  or  exchange  can 
now  be  made  with  consent  of 
commissioners,  504. 
Alteration   of  scheme   or   purpose, 
not  permitted,  495,  496. 

notwithstanding  power  to  make 
bye-laws,  499. 
trust  originally  intended  will  be 
preserved,  497 ;    and  see  499, 
711. 
but   letter   may  be    contravened, 
where  spirit  of  trust  preserved, 
499. 
act  of  of  parliament  necessary  for 
total  alteration,  499. 
how  application  for  act  autho- 
rized, 499,  785. 
Breach    of   trust,    by    retainer    of 
Charity  Funds,  502.     See  Infor- 
mation, Remed;/,  inf. 
Commissioners  of  inquiry  into,  783, 

784;  see  779. 
Construction  of  trusts  for,  495,  et  seq. 
for  "chapel,"  495,  496,  497;  "re- 
pairing and  rebuilding,"  501. 
"free   grammar-school"    "free- 


746 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


CHARITIES,  continued. 

school,"  (see  3  &  4  Vict.  c. 
77,)  499,  500. 
loans,  502. 

"  master,  finding  a,"  501. 
"  minister,"  498. 
"poor,  relief  of,"  501. 
rates,  in  aid  of,  496. 
"repairing,"  496,501. 
salaries,  where  augmentation  al- 
lowed, or   reduction  ordered, 
502. 
"  worship   of  God,"   where    exe- 
cuted in  favour  of  established 
form  of  religion,  497. 
where  in  favour  of  dissenters,  ib. 
species  of  religious  worship  pri- 
ma facie  determined  by  trust 
deed,  497  ;  and  see  499. 
and   if    not  defined,  then  by 
usage  ;  and  see  7  &  8  Vict. 
c.   45,   s.  2,  497  ;  see  also 
495,497,  499,  711. 
Duties  of  trustees  for,  c.  xviii.  p. 
492. 
See  Alienation,  Alteration,  sup. 
lacorporated,  government  of  corpo- 
ration   belongs  to  visitor,  492 ; 
and  see  Visitor. 
raanagement   of  revenue  subject 

to  chancery,  493. 
new  donations  distinguished  from 
original  endowment,  as  respects 
visitorial  power,  494. 
Investment  of  accumulations, 

whether  in  purchase  of  land, 

504. 
on  mortgage,  504,  505. 
of  moneys  arising  from  sale  or 
exchange    with    consent    of 
commissioners,  504. 
Limitation,  Statute  of,  as  to  Chari- 
ties.    See  Bemedy,  (6),  inf.,   749, 
750,  786. 
Leases  of  Charity  Lands, 

Charitable  Trusts  Acts,  how  to  be 

made  under,  504. 
consideration  for,  fines,  rents,  &c., 
505,  et  seq. 
should  be  adequate,  when  grant- 
ed, 506  ;  see  507. 
whether  fines  might  have  been 

taken  for,  506. 
direction  by  founder  that  rent 
should    not    be   raised,    not 
taken  literally,  507. 
tenant  who  dealt  fairly  not  turn- 
ed out,  507. 
allowance  to  tenant  for  per- 
manent      improvements, 
511. 


granted  at  undervalue,  who  shall 
compensate  charity,  507. 
covenants    for    trustee's    private 
advantage,  should  not  contain, 
505. 
duration  of  building  leases  should 
not  exceed  60  or  90  years, 
510  ;  see  now,  511. 
husbandry   leases,    should   not 
exceed   21    years,   508  ;  see 
now,  511. 
for  years  determinable  on  lives, 
have   been   sanctioned,   509, 
510  ;  but  see  543. 
so,  for  lives  on  payment  of  fines, 
510. 
governors  cannot  lease  to,  or  in 
trust  for,  one  of  themselves,  505. 
relation  of   trustees  to,  unadvisa- 
ble,  505,  507. 
Mesne  rents  and  profits.     See  Ee- 

medy,  [h),  inf. 
New  trustees,  appointment  of,   498. 
711,716  ;  see  718;  and  ?io/e  (6)'. 
direction  to  appoint  when  reduced 
to  a  given  number,  527. 
Payment  of  stock,  &c.,  held  on  trust 
for,  to    official  trustees,  by  order 
of  commissioners,  an    indemnity. 
382. 
Realty,  conveyance  of,  upon  trust  for. 
what  formalities  necessary  under 
9  Geo.  2,  c.  36,  504;  see  132. 
where    charity    may    take    lease 
stamped  with  trust  for  conver- 
sion, 808. 
Remedy  for  breach  of  trust, 
(a)  Mode  of,  c.  xxvi.  s.  4,  778. 
ordinarily   by   information,    779  ; 
where  by  bill,  779,  note  (1). 
relators    joined  on  account  of 
costs,  779. 
commissions    under     Statute    of 

Charitable  Uses,  779. 
by  petition   under  Romilly's  Act, 
779. 
construction  of  act,  780;  cases 

within,  781,  782. 
proceedings  under,  782,  783. 
under  Charitable  Trusts  Act,  784. 
by  equity  judge   at   chambers, 
where  income  above  30Z.  per 
annum,  or  charity  within  City 
of  London,  784. 
by  District  Court  of  Bankruptcy 
and  County  Court,  where  in- 
come less  than  30^.  per  an- 
num, ib. 
appeal    from,    when    allowed, 

784. 
previous    concent    of     charitv 


INDEX. 


r47 


CHARITIES,  continued. 

commissioners    to     proceed- 
ings, when  required,  785. 
(6)  Extent  of,  786,  et  seq. 

Account  of  mesne  rents,  what  di- 
rected, 789  ;  see  788. 
Compromise   with   attorney-gene- 
ral,   when  allowed  from  hard- 
ship, 789. 
Corporation     property,    how    at- 
tached, 791. 
Inconvenience,  how  far  applicable 

as  a  bar,  787,  et  seq. 
Limitations,  Statute  of  Charitable 
Ti'usts  not  within,  786. 
whether  within  late  stat.,  749, 
750,  786. 
Mistake,  trustees  acting  from,  not 

made  to  account,  790. 
Parish,  no   retrospective  account 

against,  791. 
Presumption,  how  far  it  applies, 
787. 
corporation  compared  with    in- 
dividuals, 790. 
Rents.     See  Lease,  sup..  Resulting 

Trusts,  inf. 
Resulting  Trusts,  how  far  legacies 
to  charities  result,   191,  et  seq.  ; 

see  193,  194,  note  ((')• 
not  presumed  on  gift  in  favour  of 
charity,  but  with  no  object,  &c. ; 
but    court   directs   application, 
198. 
increased  rents  applicable  as  ori- 
ginal gift,  198. 
exception  to  this  rule,  199. 
Schemes  for,  under  Romilly's  Act, 
782. 
new,  approved    provisionally   by 
commissioners,  785. 
Trustees    of,   entertaining   opinions 
contrary  to  founder,  removed, 
711. 
majority  of,  binds  minority,  298. 
Court  sometimes  appoints  part  of 
number  to  act  as  quorum,  299. 
Trusts  for,  synonymous  with  public 
trusts,  23. 
CHARITY  COMMISSIONERS, 
Advice,  may  give,  and  persons  act- 
ing under,  indemnified,  785. 
Attorney-General,  they  may  certify 

cases  for  his  interference,  784. 
Exchange  of  lands,  may  authorize. 

See  Investment,  inf.,  504. 
Inquiries,  may  make,  784. 
Investment  of  moneys  arising  from 

sale  or  exchange  by,  504. 
Leases,  may  authorize  building,  &c., 
504. 


trustees  of    charities    must    have 
sanction  of,  for  lease  longer  than 
21  years,  511. 
New  trustees,  appointment  of,  their 

sanction  required  for,  718. 

Official  trustee  of  charity  lands,  who 

is,  78G. 

of   charity  funds,   785 ;    see  382. 

Proceedings,   before    taking,    their 

consent  where  necessary,  784,  785. 

Sale  of  lands,  may  authorize.     See 

Investment,  sup.,  504. 
Scheme,  new,  may  provisionally  ap- 
prove (to  be  submitted  to  parlia- 
ment), 499,  785. 
CHARTER,  charities  by,  492. 
CHATTELS.       See   Administration, 
Chose  in  Action,  Executor,  Deed, 
Failure  of  c.  q.  t.,  Forfeiture,  In- 
vestment, Money,  Policy. 
Assets  in  hands  of  executor,  261,  et 

seq.,  681,  685.     See  Executor. 
Custody  of,  c.  xiii.  s.  2,  332. 
Devolution   of,  to  administrator,  or 
executor  of  ti-ustee,  260;  see  279. 
Disclaimer  of,  236. 
Execution,  taken  in,  647,  648,  662. 
whether  for  debt  of  trustee,  261, 
280  ;  and  see  Execution. 
Executory  trust  of,  in  articles,  how 
construed,  149,  et  seq. 
in  wills,  ib.,  158,  et  seq.     See  E.ve- 
cutory  Trusts. 
Interest,  where  trustees  take  under 
a  charge,  251  ;  and  see  257. 
under  devise,  subject  to  late  Wills 
Act,  259. 
limitation  to  A.  and  his  heirs 
for  certain  duration,  255. 
Limitation,  how  far  chattels  capable 
of,  at  law  bv  deed,  104;  by  will, 
ib. 
chattels  may  be  subjected  to,  by 

way  of  trust,  104. 
limited  by  way  of  trust  to  A.  and 
his  heirs,  are  personal  estate, 
131. 
cannot  be  entailed,  ib. ;  and  see 
Executory  trusts. 
Personal,  c.  q.  t.  entitled  to  posses- 
sion of,  593. 
money,  notes,   &c.,  distinguished 

from  other  chattels,  758. 
trust   of,    not   within    Statute    of 
Frauds,  61. 
once  created  by  parol,  not  af- 
fected   by   subsequent   parol 
declaration  of  settlor,  61. 
but  in  case  of  will,  see  66. 
voluntary     settlement     of,    good 
against  purchasers,  93. 


748 


LEW  IN    ON    THE    LAW    OF    TKUSTS,    ETC. 


CHATTELS,  continued. 

secus  as  against  creditors  if  set- 
tlor indebted,  ib. 
Real,   of  feme   covert.     See    Feme 
CoveH. 
prerogative  probate,wlien  required 

for,  2G1. 
trusts  of,  within  Statute  of  Frauds, 

61. 
voluntary     settlement     of,     void 
against  purchaser,  93. 
Reputed  ownership  of,  277,  et  seq. ; 

see  593. 
Special  trusts  and  uses,  chattels  are 

subject  to,  4,  5. 
Tenant  for  life  of,  594. 
Trusts  of.     See  Limitation,  sup. 
of  chattels,  are   not  affected  by 
Statute  of  Uses,  7. 
CHILD.     See  Illegitimate,  Infant. 
purchase  in  name  is  prima  facie  an 
advancement,  207.     See  Advance- 
ment, 2. 
CHOSE  IN  ACTION,  85,  86.     See 
Feme  Covert. 
assignment  of,  by  trustee,  power  of 
attorney  how  to  be  qualified  on, 
42G. 
notice  by  purchaser  of,  how  it  gives 
priority,  605,  et  seq.     See  Notice. 
purchaser  of,  from  trustee,  holds  sub- 
ject to  same  equity  as  trustee,  729. 
trust,  once  considered  in  the  nature 

of,  9  ;  secus,  afterwards,  11. 
trustee  of,  should  reduce  into  posses- 
sion if  possible,  326. 
CHURCH, 

devise  of  tithes,  &c.,  how  carried  out 
in  equity,  104  ;  and  see  Advoivson, 
Chapel. 
CHURCHWARDENS  and  Overseers. 

See  Overseers. 
CIRCUITY, 

Court  of  equity  avoids,  749,755,  note; 
and  see  94,  660,  661. 
CLAIM.     See  Bill  in  Chancery. 
adverse  to  c.  q.  t.,  trustees  should  not 
make,  325  ;  see  878. 
CLERK, 

election  of,  107.     See  Parishioners. 
CO-EXECUTOR.       See     Co-trustee, 

Executor. 
COHABITATION, 

bonds,  138,  note  (x). 
COLLATERAL, 

equitable  powers  may  be,  525. 
COLLECTOR, 
trustees  may  employ,  of  debts,  557  ; 
of  rents,  556. 
COLONIES, 

Enactments  passed  at  home,  when 


they  are  bound  by,  62. 
Lands  in,  within  Lord  St.  Leonards' 
Trustee  Act,  835,  note  (s),  and  see 
Trustee  Act,  54,  56. 
Trust  may  be  usually   enforced  of 

personal  property  in,  47. 
how  far,  of  real  estate  in,  47,  et  seq. 
COMMISSION.     See  Trouble. 

Executors  in  the  East  Indies,  whether 
they  may  charge,  547  ;  see  note  («). 
Mortgagees,    Trustees,    &c.,  cannot 
charge,  546. 
secus  as  to  trustees  for  absentees 
of  estates  in  West  Indies,  546. 
may  be  allowed  to  trustee  by  set- 
tlor, 550. 
may  be  stipulated  for  with  c.  q.  t., 

551. 
or  with  court  before  acceptance  of 
trust,  553,  et  seq. 
COMMISSIONERS, 

charity.  See  Charity  Commissioners. 
COMMITTEES  OF  LUNATICS, 
mav  not  charge  for  time  and  trouble, 

546. 
have  no  interest,  and  therefore  office 

does  not  survive,  299. 
cannot  make  repairs  without  previous 
order,  524. 
COMMON  LAW, 

Courts,  have  no  jurisdiction  of  trusts, 
19,  261 ;  see  249,  note  {u). 
qu.  whether  they  can  notice  breach 
of  trust,  37,  note  (n),  581. 
Trusts  at,  c.  v.  s.  1,  56. 
COMMON, 

Tenancy  in.      See    Joitii    tenancy, 
Tenancy  in  Common. 
COMPANY.     See  Parties,  847,  Trus- 
tee Extension  Act,  ss.  6,  7. 
Conversion  of  shares  in,  where  be- 
queathed in  succession,  812. 
Public,  does  not  usually  take  notice 

of  trusts  of  shares,  &c.,  858. 
Restraining  order  under  5  Vict.  c.  5. 
s.  4,  applicable  to  shares  in,  860, 
863. 
COMPENSATION, 

from  person  who  benefits  by  breach  of 
trust,  392,  768,  771 ;  see  353,  846. 
in  case  of  charity,  lease  at  underva- 
lue, 507. 
COMPLICATED, 

where  account  is,  relief  in  equity  on 

legal  title,  753,  note. 
trust  whether  within  Lord  St.  Leo- 
nards' Trustee  Act,  836,  note  (x). 
Statute  of  Frauds,  s.   10,   695  ;    12 
Vict.  c.  110,  s.  11,  669. 
COMPOUND  INTEREST, 
when  charged,  362,  363,  397. 


INDEX. 


749 


COMPOUNDING, 

with  creditors,  whether  trustee  there- 
by unfit  for  office,  711,  note  {g). 
debts,  powers  of  trustees  as  to,  520, 
et  seq. 
COMPROMISE, 

with  attorney-general,  in  accounts  of 
charitable  trusts,  789. 
COMPULSORY, 
payment  into  court,  c.  xxix.  s.  4,  p. 
864.     See  Pai/menf  into  Court. 
CONCEALMENT, 

of  breach  of  trust,  will  make  co-trustee 

liable,  317. 
of  fraud,  prevents  bar  to  equitable 

relief,  734,  743  ;  see  754,  note. 
of  right  to   estate,  account  carried 
back  to  accruer  of  title,  756,  note. 
CONCURRENCE, 
c.  q.  t.  by,  estopped  from  proceeding 

against  trustee,  773. 
secus  where  c.  q.  t.  a  feme  covert  or 
infant,   774 ;   except   in    case   of 
fraud,  ib. 

or  as  to  feme  covert,  who  has 
separate    estate   without   re- 
straint, 775  ;  conf.,  778. 
or  where  c.  q.  t.  acts  in  ignorance, 
774. 
CONDITION, 

legacy  for  charity  charged  on  devise 
by  way  of,  creates  resulting  trust, 
193. 
CONDITIONS  OF  SALE, 

what,  trustees  for  sale  may  impose, 
423. 
CONFIDENCE, 

in  person  explained,   2 ;  see  22, 

530. 
not  so  strictly  applied  as  to  uses, 

10. 
in  what  sense  a  trust  said  to  be, 

15. 
words  expressing  testator's  confi- 
dence may  raise  a  trust,  168. 
CONFIRMATION  by  C.  Q.  T. 

of  breaches  of  trust,  general  requi- 
sites of,  472,777,778. 
feme  covert  cannot  make,  except 
as  to  separate  estate,  without 
restraint,  471,  777  ;  conf.  778. 
by  widow,  of  promise  made  during 

coverture,  776. 
infant    cannot  make,   471,   777  ; 
see  776. 
CONSENT, 
by  c.  q.  t.  to  breach  of  trust,  effect 
of,  768,  769. 
feme  covert  of,  required  by  trust, 
348. 
investment  to  be  made  with,  340. 


purchase  to  be  made  with,  807. 
CONSIDERATION.     See    Charities 
(Leases). 
Generally 

family  differences,  I'econciling,  a 

good  consideration,  94. 
necessary,  is  not  to  support  a  con- 
firmation, 472. 
what  sufficient  for  release   or 
waiver,  737. 
is    not    for    a    trust    perfectly 
created,  81.     See  Voluntary 
Assurance. 
will,  consideration  is  implied  by, 
58,  167. 
Meritorious,  agreement  or  imperfect 
trust   founded  on,  how   far  en- 
forced, 94,  et  seq. 
not  against  settlor  though  under 
seal,  94  ;  see  note  (e). 
creditors  of  settlor,  or  purcha- 
ser from  him,  99. 
whether  against  heir  or  volunteer 

of  settlor,  ib.  ;  see  note  {t). 
extends   to   creditor,  child,   wife, 

95  ;  see  796. 
cannot  be  urged  by  parent  against 
his  child,  95,  note  [f). 
Nominal,  177,  on  bargain  and  sale, 

96. 
Valuable,  where   it  exists  trust  not 
averrable,  57;  trust  enforced,  81. 
to   whom    consideration   of  mar- 
riage settlement  extends,  406. 
may  be  proved  aliunde  as  against 
third   persons   where  deed  ap- 
parently voluntary,  477. 
CONSOLS, 

£3  per  cent,  proper  investment  of 
trust  money,  351 ;  see  813. 
CONSTRUCTION, 
Devise,  of,  to  uses,  258. 
Instrument  of,  is  question  for  court, 

73,  74. 
Legal  estate,  as  to,  taken  by  trustee, 
c.  XI.  s.  1,  246,  et  seq. ;  and  see 
Legal  Estate. 
Powers  of,  527,  et  seq.     See  Powers. 
Trusts  of,  governed  by  same  rules  as 
construction  of  legal  estate,  141. 
for  charities.    See  Charities  (Con- 
struction), 495,  et  seq. 
executory    in    marriage  articles, 
147,  et  seq. 
in  wills,  153,  et  seq.    See  Exe- 
ctttori/  trusts. 
CONSTRUCTIVE    TRUSTS.      See 
Trade. 
Bankruptcy  of  trustee,  how  affected 

by,  276. 
Cases  of  agents,  factors,  &c.,  225  ; 


750 


LEWIX  ON  THE  LAW  OF  TRUSTS,  ETC. 


CONSTRUCTIVE     TRUSTS,     con- 
tinued. 
see  217,  220  ;  but  see,  as  to  agent, 

226,  459. 
attorney  violating  his  duty,  226. 
decree  for  sale,  person  to  convey 
under,    839,    note  (?)  ;  see  834, 
note  (n),    836,    note  (x),    837, 
note  (6),  and  see  882,  note  (_/'), 
894,  note  (Z). 
equitable  waste,  225. 
holder  of  title  deeds  how  far  con- 
structive trustee  for  remainder- 
man, see  227,  228  ;  see  591. 
notice  of  trusts,  constructive  trus- 
tee by  means  of,  228. 
on  renewal  of  leases  by  executors, 
trustees,  &c.,  217. 
mortgagee,  218;  but  see  221. 
tenant  for  life,  or  other  having 

partial  interest,  218. 
yearly  tenant,  219  ;  how  far  by 
tenant  at  will,  or  by  suffer- 
ance, 219. 
what  circumstances,will  not  vary 
rule,  220  ;  and  see  note  (/"). 
expenses  of  renewal  by  tenant 
for  life,  222. 
how  far  annuitants  should  con- 
tribute to  fine,  223. 
trustee's  lien  for,  222. 
mesne  rents  and  profits  and  sub- 
fines,  trustee  accounts  for,  223  ; 
see  224. 
renewal,  right  of,  trustee   cannot 

sell,  220. 
reversion,  how  far  trustee  purchas- 
ing, a  constructive  trustee,  225. 
terms  of  assignment,  from  trustee 

to  c.  q.  t.,  223. 
volunteers  and  purchasers  with  no- 
tice   from   trustee,    remedy    a- 
gainst,  224. 
Distinguished  from   implied    trusts 
and  trusts  by  operation  of  law,  140, 
note(l). 
Relief  as  to,  barred  by  laches,  224, 
742  ;  see  750. 
Statute  of  Limitations,  729,  730. 
746. 
Statute  of  Frauds,  how  far  it  affects, 
228,  et  seq.,  762. 
distinction  between  trust  arising 
on  a  will  and  on  a  conveyance, 
230. 
CONTINGENT    INTEREST.      See 
Possibility. 
equitable,  c.  q.  t.  may  assign,  600. 
owner  of,  entitled  to  have  it  se- 
cured, 723  ;  and  see  868. 
cost  of,  filing  bill  for,  368. 


lands   in,    disposable  under  8   &   9 
Vict.  c.  106,  817,  note(n). 
CONTINGENT  REMAINDERS, 

Effect  of  Fines  and  Recoveries  Act, 
411;  of  8  &  9  Vict.,  c.  106,  156', 
412. 

Freehold,  where  legal,  must  be  sup- 
ported by  particular  estate  ;  secus 
in  trusts,  104. 

Trustees  for  preserving  duties  of,  c. 
XV.  404 ;  see  note  (a).  Waste,  inf. 

1.  Until  eldest  son  has  attained  21, 
obligation  to  preserve  remain- 
ders imperative,  405,  though 
settlement  voluntary,  406. 

Court  will  not  sanction  destruction, 
407  ;  exceptions  to  rule,  407, 
408. 
remedy  for  destruction  of,  406. 
extended  only  to  those  who  claim 

as  purchasers,  406. 
issue,  during  life  of  parent,  can- 
not sue  as  "heir,"  407. 

2.  After  eldest  son  has  attained 
21,  the  trustees  become  "  hono- 
rary trustees,"  and  the  destruc- 
tion of  the  remainders  is  a  mat- 
ter of  discretion,  408. 

Court  will  exercise  discretion  for 
trustees,  409. 
punishes  fraudulent  exercise  of 

discretion,  ib. 
allows    destruction    on    eldest 

son's  mai-riage,  ib. 
does  not  allow  destruction  with- 
out cogent  reason,  ib. 
a  fortiori  not  for  culpable  ob- 
ject, as  payment  of  father's 
debts,  ib. 
but  trustee  not  necessarily  lia- 
ble because  court  would  not 
have  so  acted,  410. 
whether  any  distinction  between 
will  and  settlement,  410,  411. 
Trustees  for  preserving  limitation  to, 
how  usually  framed,  and  object  of, 

404. 
"  and  their  heirs,"  whether  it  can 

be  cut  down,  253,  et  seq. 
whether   necessary  since   8   «fe   9 

Vict.  c.  106,  156,412,413. 
a  special  trust  not  within  Statute 
of  Uses,  247. 
Receiver,  trustee  for  preserving,  may 

be,  319. 
Waste,  duty  of  trustees  to  preserve, 
to  prevent,  408. 
"  CONTINUANCE  OF  TRUST," 

power  during,  531. 
CONTRACT.     See  Agreement,  Cove- 
nant, Specijic  Performance. 


INDEX. 


■51 


CONTRACT,  continued. 
by  feme  covert  as  to  separate  pro- 
perty, 633. 
under  Fines  and  Recoveries  Act, 
634,  note  (n). 
private,  trustees  may  sell  by,  422. 
purchase,  for,  of  fee  by  A.,  if  A.  die, 
executor  pays  price,  but  heir  en- 
titled to  purchase,  Y99. 
sale,  for,  raises  implied  trust,  174. 
of  land  by  A.,  if  A.  die,  fee  de- 
scends to  heir,  price  belongs  to 
executor,  799. 
CONTRIBUTION, 

charities  founded  by  means  of,  their 

trusts,  how  expounded,  497. 
co-trustees,  amongst,  on  breach  of 
trust,  768;  as  to  costs,  767. 
none  where  fraud,  768. 
secus  in  favour   of  assignees  of 

bankrupt  trustee,  773. 
how  worked  out,  845,  846. 
rule  of,  in  renewable  leaseholds,  395, 
398,  et  seq.   See  Renewable  Lease- 
Jiolds. 
CONTROL, 

how  far  court  will  control  powers, 

538.     See  696,  Foicers. 
trustee  must  not  put  trust  property 
out  of  his  own,  334,  et  seq. 
CONVERSION.     See  Gavelkind,  Re- 
duction (into  possession). 
Implied,  in  cases  of  personal  proper- 
ty given  in  succession, 
(a)  where  investment   not  wasting, 
but  not  authorized  by  court, 
812;  see  352. 
6.   g.   foreign    bonds    or    stocks, 
shares  in   canals,  insurance, 
railway  companies,  &c.,  ib. 
secus  where   mouey  invested 
on  mortgage  unless   benefi- 
cial to  call  it  in,  354. 
where  stock  other  than  £3  per 
cents,  specifically  bequeath- 
ed, 354. 
India,  assets  in,  as  to,  355. 
[h)  where   property   is   wasting,   as 
leaseholds,  long  annuities,  &c., 
808;  see  352. 
secus  where  intention  that  proper- 
ty should  be  enjoyed  in  specie, 
809,  et  seq. 
e.  g.   by   specific  bequest  of 
leaseholds  or  stock,  809,  et 
seq. 
by  mention  of  rents  or  divi- 
dends, 809,  et  seq. 
by  direction  to  convert,  &c.,  at 
period  subsequent  to  testa- 
tors death,  809,  810. 


Income  accruing  before  conversion, 
application  of  proportion  of  ten- 
ant for  life  after  testators  death, 
813,  et  seq. 
where  accumulation  directed,  and 
investment,    he   takes    income 
from  end  of  first  year,  813. 
where    investment     directed,    he 
takes  from  testator's  death,   if 
funds  then  invested,  otherv/ise 
from  investment,  if  made  in  first 
year,  814. 
before  conversion,  he  takes   rea- 
sonable fruit  of  property,  814  ; 
see  815,  note  (x). 
he  must  refund  if  he  take  undue 

proportion,  353. 
and  if  he  is  insolvent,  semble  trus- 
tees liable,  ib. ;  and  conf.  768. 
rule  where  property  incapable  of 
immediate    conversion,  815, 
810. 
where  discretion  given  to  trus- 
tees as  to  time  of  conversion, 
815. 
as   to  rents  of  devised  estates, 
816. 
Land  to  he  converted  taken  as  money, 
807.     See  Resulting  trust. 
e.  g.  alien  may  take  proceeds,  307  ; 
bequest  of  personal   estate,   ii 
passes  by,  ib.  ;  not  bequeathed, 
it  goes  to  personal  representa- 
tive, ib. ;  is  not  subject  to  pro- 
bate duty,  ib. 
charity,  where  it  may  betaken  by, 

808  ;  but  see  note  [m). 
elect,  party  entitled  may,  to  take 
as  land,  598,  816.     See  Elec- 
tion. 
how  election   presumed  or  ex- 
pressed, 823,  824. 
imperative,  conversion    must  be. 

808  ;  and  see  note  (n). 
judgment,  whether  subject  to,  653. 
mortgagee  selling  under  power  of 
sale,  who  entitled  to  surplus  pro- 
■   ceeds,  808. 

option  to  purchase,  whether  exer- 
cise of,  effects  retrospective  con- 
version, 808  ;  but  see  note  {p). 
Money  to  he  laid  out  on  land,  taken 
as  land,  793,  et  seq.     See  Re- 
sulting trust. 
e.   g.   subject    to    curtesy,    793 : 
quffire,  whether  to  dower,  794, 
795. 
devised  by  description  of"  lands,'' 
796  ;   not    (formerly)  by   in- 
fant's will,  ib. ;  conf.  816. 
but   formerly  -bequeathed   by 


752 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


CONVERSION,  continued. 

unattested  will  operating  by 
election,  824,  825. 
escheat,  not  subject  to,  795. 
hotchpot,  not  brought  into  (for- 
merly,) by  child  receiving  or- 
phanage share,  797. 
judgment,  bound  by,  796. 
personal  assets,  not  accounted, 
and  (formerly  not  liable  to 
simple  contract  debts,  796. 
heir  of  A.  on  whom  lands  were  to 
be  settled,   when  entitled  to 
money,  797,  et  seq. 
(a)  entitled  as  against  stranger. 
e.  g.  bequest   by  stranger  to 
purchase   and  settle  on  A. 
and  his  heirs,  and  A.  dying 
before   purchase,  797  ;  and 
see  note  (y). 
deposit  of  money  in  hands  of 
trustees  (whether  by  A.  or 
stranger,)  &c.,  ib. 
covenant  by  stranger  on  mar- 
riage of  A.  &c.,  ib. 
^)  entitled  as  against  A.'s  exe- 
cutor (e.  g.  under  covenant  by 
A.   on    his    own    marriage) 
where  at  A.'s  death  third  per- 
son   has   equitable   interest, 
798. 
otherwise  not  so  entitled,  i.  e. 
where   money    "  at  home," 
800. 
money  considered  "  at  home" 
if   received   from    trustees, 
804  ;  see  823. 
entitled  under  bequest  by  A.  to 
purchase  with   limitation    to 
A.'s  heirs,  805. 
quasre,  whether  so  entitled  under 
voluntary  covenant  to  lay  out 
money  on  land,  805. 
elect,  party  entitled  may,  to  take 
as  money,  816.    See  Election, 
598. 
how  election  presumed  or  ex- 
pressed, 823,  824. 
imperative,  conversion    must  be, 
806  ;  and  see  797,  note  (?/). 
considered  so,   where  uses  de- 
declared  exclusively  applica- 
ble to  real  estate,  806. 
notwithstanding  power  to  invest 
on  personal  security,  806. 
mere  direction  to    convert  at 
"request,"   &c.,  807  ;   unless 
where  "  request,"  &c.,  intend- 
ed to    be  substantial   ingre- 
dient, ib. 
ToHious,  of  trust  estate  hy  trustee, 


does  not  afifect  rights  of  c.  q.  t., 
825. 
case  of  infant  c.  q.  t.     See  /«- 
yrt«#  (Conversion),  829. 
lunatic  c.  q.  t.     See  Lunatic 
(Conversion),  825. 
right  of  c.  q.  t.  to  follow  substituted 
property,    c.   sxvi.  s.    2,   753. 
See  Folloic. 
CONVEYANCE.     See    Grant,  Trus- 
tee  Acts  (Interpretation  clause), 
and  889,  note  [t). 
equitable  estates,  usual  form  of,  600  ; 
precautions  in  604,  et  seq. 
expense  of,  from  old  to  new  trus- 
tee, when  borne  by  trustee,  711. 
See  Neio  trustees. 
parties   to,   when  c.  q.  t.  should 
join  in,  427;  and  see  8B1,  note 
{h). 
when  trustee  to  bar  dower,  596. 
person  to  make,  under  decree,  a 
constructive  trustee,  839,  note 
(?).     See  Trustee  Act,  s.  29 ; 
Trustee  Extension  Act,  s.  1 ; 
and  see  882,  notes  (/)  [g). 
to  require,   under  Lord  St.  Leo- 
nard's Trustee   Act,  837,  note 
[a).  See  Trustee  Extension  Act, 
s.  2. 
by  trustee  at  direction  of  c.  q.  t., 
595,  596  ;  of  assignee  of  c.  q.  t., 
600. 
whether  compellable  to  convey  in 

parts,  595  ;  and  see  note  [p). 
by  what  description  ;  not  bound  to 
convey  fee  simple  to  tenant  in 
tail,  ib. 
liabilitv  for  refusing,  595. 
CONVICTION, 

of  felon,    &c.,  28.     See  Forfeiture, 
Trustee  Extension  Act,  s.  8. 
COPIES, 
of  vouchers,  whether  c.  q.  t.  entitled 
to,  428;  of  accounts,  599. 
COPYHOLDS, 

Admission  operates  retrospectively, 
249. 
fine  on,  paid  by  trustees,  272  ;  at 
what  rate,  where  co-trustees, 
272. 
charged   on    trust   estate    how 
raised,  402. 
of  trustee  under  mandamus,  324. 
Customary  freeholds,  copyholds  dis- 
tinguished from,  283, 616,  note  (1). 
Descent  of,  trust  descends  to  custo- 
mary heir,  45. 
Devise  of  legal  estate  in,  formerly 
devisable  by  will  unattested  and 
unsigned,  45,  note  (a). 


I X  D  E  X. 


COPYHOLDS,  continued.^ 

whether  by  nuncupative  will,  60, 

note  (1). 
so  equitable   interest,    45  ;    even 
where  legal  interest  not  so,  45, 
46,  616  ;  and  although  no  pre- 
ceding surrender,  616. 
copyholds  now  subject  to  late  Will 
Act,  60,  note  (1),  617. 
Dower  Act  does  not  affect,  621,  627. 
Freebeuch,  260  ;  equitable  interest 
in    copyholds  is    not  subject   to, 
621. 
For  lives,  how  they  devolve  under  1 
Yict.  c.  26,  s.  6,  203. 
how  far  purchase  of,    in  name  of 
stranger,  raises  resulting  trust, 
203. 
how  far,  in  name  of  child,  210,  see 
214. 
Lord  bound  by  entry  of  trust  on  court 

roll,  283. 
Resulting  trust.  See  For  Lives,  sup. 
Surrender,  estate  passed  by,  remains 
in     surrenderor     until     admis- 
sion of  surrenderee,  249. 
on  what  principle  supplied  in  equi- 
tv,  96  ;  and  see  Devise,  sup. 
CORONER, 

trustee  in  possession  votes  for,  269. 
c.  q.  t.  in  possession  votes  for,  269  ; 
but  see  592,  593. 
CORPORATION.  See  Overseers,Par- 
iies. 
Breach  of  trust  by,  763  ;  see  767,  31. 

property  how  attached  for,  791. 
Bye-laws,  may  make,  but  not  so  as  to 

defeat  object  of  foundation,  498. 
C.  q.  t.,  may  not  be,  of  lands,  with- 
out license  from  crown,  43,  131  ; 
see  31. 
Civil,  might,  before  Municipal  Cor- 
poration Act,  alienate  their  pro- 
perty and  create  trusts,  25. 
secus  now  without  consent  of  lords 

of  treasury,  25,  31. 
are  now  trustees  of  their  property, 

31. 
visited  by  crown  through  Court  of 
Queen's  Bench,  495. 
Costs,  instances  where  visited  with, 

505,  877. 
Distinction    between    corporations, 
and  individuals  as  to  presumption 
of  notice,  790. 
Ecclesiastical,  bound  by  restraining 

statutes,  25. 
Eleemosynary,  where  crown  visitor 
of,  visitorial  power  committed  to 
lord  chancellor,  495. 
Trustee,  a  corporation,  may  be,  10  ; 


of  personalty,  and  how  of  realty, 
31. 
Use,  cannot  stand  seised  to,  2. 
COSTS, 
Generally, 
As    between   party   and  party — 
where    trustee    defendant  to 
bill  by  stranger  which  is  dis- 
missed, 872. 
where   trustee   disclaims,    235, 
874. 
As  between  solicitor  and  client — 
allowed  in  matters  between  c. 
q.  t.  and  trustee  where  fund  in 
court,  874. 
doubtful  construction,  case  of,  368. 

See  Contingent  Interest. 
extra,  trustee  who  has  been  paid 
between  party  and  party,  where 
allowed,  558. 
cs.  q.  t.,  and  trustees  defending  in 
same  interest,  one  set  of  costs 
allowed,  857. 
as  to  husband  of  feme  covert  who 
sues  for  separate  property,  see 
858. 
co-trustees   of,   severing  defence, 
857. 
contribution  to,  between,  767. 
disclaiming  trustee  of,  235,  874. 
excesssive,  how  moderated,  558. 
executors   in    creditor's   suit   en- 
titled to,  in  preference  to  plain- 
tiff, 873  ;  rule  at  law  different. 
See  of  Trustees  (&),  inf. 
interest  on,  not  allowed,  558. 
lien  of  trustee  for  expenses,  560  ; 

see  558. 
lunatic  mortgagee  or  trustee,  883, 

note(i). 
new  trustees  of,  appointing,  582, 
et  seq  ;  and  see  711,  and  Trus- 
tee Act,  1850,  s.  51,  901,  note 

recovered,  how,  by  trustee,  as  a- 

gainst  c.  q.  t.  or  trust  estate, 

873;  see  558,  560. 
relators,  joined  in  information  for, 

779. 
sale   under   decree,   petition    for 

vesting    order,    &c.,    903,   note 

solicitor,  his  costs  when  trustee, 
874  ;  and  see  Solicitor,  as  to  c. 
q.  t.  obtaining  taxation  against 
558,  note  (/),  561,  note  (_r). 

specific  performance,  in  suit  for, 
872;  see  421. 

trust  to  pay,  how  construed,  564. 

Trustee  Relief  Acts,  under.  See 
Trustee  Belief  Act,  (Costs). 


754 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


COSTS,  continued. 

void  deed,  trustee  of,   where  en- 
titled to  costs,  875. 
Of  trustees,  &c.,  in  suits  between  trus- 
tees and  cs.  q.  t. 

Executor  (fixed  with  costs), 
denying  assets  when  they  exist, 

878.  _  _     . 

improperly  retaining  balances, 

875,  876  ;  and  see  359. 
putting  next  of  kin  to  proof  of 

relationship,  878. 
qu.  whether,  when  interest  given 
against  them,  878,  879. 
(a)  Trustee  allowed,  367,  368,  873. 

to  be  paid  out  of  trust  fund  or  by 
c.  q.  t.,  873  ;  see  558,  and  conf. 
562,  563. 

and  where  fund  in  court,  as  be- 
tween solicitor  and  client,  873  ; 
not  appearing  at  hearing,  and 
decree  nisi  againsthim,  may  pay 
costs  of  day,  and  have  cause  re- 
heard, 784. 

secus,  after  decree  passed,  ib. 
[h)  Trustee   deprived   of  or  fixed 
with  costs,  or  portion. 

accounts,  keeping  confused  or  mis- 
stating, 877. 

answer,  severing  improperly,  857. 

appointing  new  trustee  after  bill 
filed  sometimes  pays  extra  costs, 
544. 

convey,  refusing  to,  at  c.  q.  t.'s  di- 
rection, pays  costs,  595 ;  see  600. 

denying  falsely  plaintiff's  claims, 
pays  costs,  878. 

ignorance,  falsely  pleading,  pays 
costs,  878. 

instituting  suit  for  his  private  ends, 
pays  costs,  877  ;  see  325. 

leasing  charity  lands  with  cove- 
nants for  private  advantage  (de- 
prived of  costs),  505. 

misconduct,  guilty  of  (pays  costs 
or  portion  thereof),  875  ;  what 
where  misconduct  discovered  in 
progress  of  suit,  876;  what  where 
misconduct  causes  administra- 
tion suit,  ib. ;  what  where  doubt- 
ful point  of  law,  ib. ;  where  proved 
in  part,  875. 

trivial,  877 ;  purchase  of  trust 
property  at  auction,  875  ;  see 
461. 

mistake,  committing,  sometimes 
pays  portion  of,  sometimes  de- 
prived of,  sometimes  allowed, 
876,  877. 

neglect,  as  to  proceedings  caused  by 
trustee's  neglect,  558  ;  see  876. 


neglecting  to  make  inventory,  de- 
prived of  costs,  244. 
purchasing  trust  estate  improper- 
ly, pays  costs,  when,  469. 
retaining  balance.     See  Executor, 

sup.  502. 
retiring,  from  caprice,  pays  costs, 

583  ;  but  see  584. 
setting  up  title  of  his  own,  or  trust 
different  from  existing  one,  pays 
costs,  878  ;  see  325. 
Trustees  of,  in  suit  between  trustees 
and  strangers,  872,  et  seq. 
trustee  on  same  footing  as  ordinary 
plaintiffor  defendant,  872 ;  see 
421. 
made   defendant   as   necessary 
party   and    contesting  plain- 
tiff's claim,  is  not  entitled  to 
costs  if  plaintiff  successful,  ib. 
secus  when  trustee  submits  point 

to  court,  ib. 
case  where  plaintiff  fails  in  suit, 

ib.     See  Generally,  sup. 
and  see  as  to  frame  of  suit,  856, 
et  seq. 
CO-TRUSTEES.     See  Solicitor. 
Answer,  they  should  generally  join 

in,  857  ;  or  in  suing,  ib. 
Affidavit  of,  on  payment  into  court 
under   Trustee   Relief  Act,  376, 
note  (5). 
Breach  of  Trust,  each  is  responsible 
to  c.  q.  t.  for  whole  liability  and 
costs,  767 ;  exception,  ib. 
each  is  liable    for  concealing  or 

permitting,  317. 
co-trustee  permitting,  liable  to  be 
removed,  711. 
Contribution  between,  767,  768;  and 

see  845. 
Disagreeing,  court  will  exercise  pow- 
er, 696. 
receiver  appointed,  870. 
Duties,  may  not  delegate  discretion- 
ary power  to  co-trustee,  297. 
may  not  lend  trust  money  to  co- 
trustee, 338,  345. 
may  not  permit  trust   money  to 
remain  in  hands   of  co-trustee, 
306,  309,  330 ;  and  see  314,  315. 
may  not  passively  trust  co-trustee 
even  though  a  professional  per- 
son, 243,  244;  see  290. 
Indemnity  clause,  its  effect  as  to  co- 
trustees, 317. 
Joint,  their  office  is,  298  ;  see  Survi- 
vorship, inf. 
e.  g.  they  must  jointly  give  receipts 
for  principal  moneys  (general- 
ly), 298,  448,  449. 


INDEX. 


755 


CO-TRUSTEES,  continued. 

but  any  one  may  receive  dividends 
or  rents,  299. 
they  must  all   prove   in  bank- 
ruptcy (generally),  298. 
they  must  join  in    conveying, 

299. 
but   in    public  trusts  majority 

binds,  298. 
aud  court  sometimes  allows  a 
part  to  form  a  quorom,  299. 
Liability,  one   is   not  liable  for  the 
acts  or  defaults  of  another,  302. 
nor  for  joining  pro  forma  in  re- 
ceipts, 304. 
unless  where    money  improperly 

raised,  306. 
and  see  Breach  of  trust,  sup. 
Parties,  how  they  must  join  in  suing 
and  defending,  85Y. 
necessary,  see  841,  845,  et  seq. 
See  Parties. 
Payment  to,  safe  to  pay  into  a  bank 

to  their  joint  account,  330. 
Survivorship  of  office,  299,  300,  note 
{/),  419,  849. 
notwithstanding  power  to  appoint 
new  trustees,  301  ;  and  see  419. 
COUNSEL, 
advice  of,  366,  595 ;  as  to  disclaimex', 
234. 
trustee  allowed  fees  paid  to,  558. 
COUNTY  COURT, 

Judgment  of,  enforced  in  equity,  663. 
Jurisdiction   of,  in   charities   whose 
income  under   £30,   718,   note 
(h),  784. 
appeal  from,  to  Chancery,  when, 
784. 
COURT,  19,  20.     See  Chancenj,  Com- 
mon   Law,   Spiritual,  New  trus- 
tees, Poivers. 
assignment  of  fund  in,  613,  614. 
COVENANT.      See  Action,  Advan- 
tage, Lease. 
"  Grant,  bargain,  and   sell,"  under 
Yorkshire  Registry  Acts,  has  force 
of  covenant  for  title,  596,  note  (r). 
Form  of,  in  conveyances,  &c. 

by  devisees  of  lessor  who  has  cove- 
nanted for  renewal,  425,  note  (/t). 
executors  of  one  who  has  agreed 

to  take  a  lease,  ib. 

mortgagees  and  trustees  for  sale, 

425 ;  for  production  of  deeds,  ib. 

on  assignment  of  lease,  420  ;  see 

223. 

Not  to  sue,  or  bond  compared  with 

release,  773. 
To  stand  seised,  extended  to  brother, 
child,  cousin,  nephew,  or  wife,  96. 


required  a  deed,  95. 
to  use  of  stranger  in  blood,  not 
enforced  in  equity,  94. 
To  settle  property,  174,  762.     See 
Demerara. 
acquired  during  coverture,  174. 
To  transfer  stock,  liability  of  trustee 

for  not  enforcing,  765. 
Trustee  by,  a  breach  of  trust  is  a 

specialty  under,  238,  765. 
Voluntary,  carries  consideration  at 
law,  93. 
not  specifically  executed  in  equity, 

94,  note  (e). 
by  A.  to  purchase  lands  to  be  set- 
tled on  A,  and  his  heirs,  qu. 
whether  A.'s  heir  takes  under, 
805. 
COVERTURE,     ^gq  Feme  Covert. 
CRASSANEGLIGENTIA,337.    See 

Neglect. 
CREATION  OF  TRUST, 
By  act  of  a  party. 

Formalities  required  for,   c.   v.  56. 
See  Averment;   I'rauds,   Statute 
of;  Wills,  Statute  of;    Transmu- 
tation of  Possession. 
Object  proposed  by,  c.  vi.  103.     See 

Latcfnl,  Unlawful  trusts. 
Parties  to,  c.  iii.  p.  24.     See  C.  q.  t. 

Settlor,  Trustee. 
Property,  what  may  be  subject  of, 
c.  IV.  45.     See  Property. 
CREDITORS.     See  Assets,  Debts. 
Acquiescence,  when   bound   by,  in 
purchase  by  trustees,   &c.,   471  ; 
see  737,  777. 
Confirmation,  where  bound  by,  473. 
Execution,  creditors  taking  out,  may 
purchase  goods  sold  under,  465. 
taking  trust  estate  under,  bound 
by  trust,  280. 
Separate   property  of  feme    covert, 

their  remedies  against,  640,  642. 
Trust,  their  rights  cannot  be  defeated 

by  means  of,  132,  et  seq. 
Voluntary  settlement,  by  one  largely 
indebted,  is  void  against,  93. 
for,  whether  they  can  enforce  its 
execution,  101  ;  see  481. 
CROWN.     See  779,   Chancellor,  835, 
note    (p).    Forfeiture;     Frauds, 
Statute  of;  Pension. 
Alien's  trust  of  real  estate,  crown, 
how  entitled  to,  43, 132.  See  Alien. 
Bonum   vacans  where  c.   q.  t.  dies 
intestate   and  without  next  of 
kin,  crown  takes  residuary  per- 
sonalty, 198,324. 
but  executor  where  appointed  takes 
as  against  crown,  59,  324. 


756 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


CROWN,  continued. 

C.  q.  t.,  crown  may  be,  42. 
Prizes,  taken  in  war,  vest  in,  25. 
grant  of,  to  trustees  for  distribution 
revocable  until  distribution,  25, 
101. 
Trust,  bow  it  may  create  (of  private 
property),  24,  25. 
declaration  of,  by  or  to  crown,  59. 
mode  of  enforcing  against  crown 
doubtful,  30. 
Use,  can  declare,  by  letters  patent,  59. 

cannot  stand  seised  to,  2. 
Visitor,  where,  495. 
Will  of  sovereign,  25. 
CURTESY, 
Admitted  of,  an  equity  of  redemption 
or  trust,  621. 
unless  where  husband  an  alien,  ib. 
and  if  feme  covert  had  equitable 

seisin,  622. 
notwithstanding  trust  for  separate 

use,  623, 
of  money  to  be  laid  out  on  land, 

622,  793. 
why  curtesy  and  not  dower  of  a 
trust,  625  ;  see  12. 
Not  admitted  of,  a  use,  4. 
Tenant  by,  bound  by  a  trust,   11, 
2G0,  279  :  not  by  a  use,  3. 
CUSTODY, 

of  trust  chattels,  c.  xiii.  s.  2,  332. 
CUSTOM, 

Of  Kent.     See  Infant  (Feoffment). 
CUSTOMARY  FREEHOLDS, 
Distinguished  from  copyholds,  284, 

616,  note  (1). 
Lord    taking    by  escheat,    whether 
bound  by  entry  of  trust  upon  court 
roll,  284. 
Trust  of,  must  be  devised  according 
to  the  Statute  of  Frauds,  616. 

DAUGHTERS, 

Advancement  for,  presumed,  216. 
Included     under    "  heirs     female," 
"  heirs  of  body,"  or  "  issue,"  in 
articles,  149,  156. 
how  the  limitation  will  be  execut- 
ed, 149. 
DEBTS, 
Generally. 
destruction  of  contingent  remain- 
ders held  justified  by  payment 
of  debts,  408. 
executor  may  not  sell  to  pay  his 
own  debts,  456,  qu.  if  he  be  spe- 
cific or  residuary  legatee,  456  ; 
or  jointly  with  others,  457. 
specialty  and  simple  contract.  See 
Specialty,  Simple  Contract. 


trust  to  pay  surplus  power  of  re- 
ceipts, unless  debts  scheduled, 
435,  436. 

trustee  may  appoint  collector,  55  ; 
compound,  520  ;  may  not  buy 
up  for  himself,  318. 
Trusts  for  Payment  of,  c.  xvii.  474, 

et  seq. 
Created  by  act  inter  vivos,  474,  et 
seq. 

(a)  person  not  trader  may  create 
of  all  or  parts  of  property  for 
all  or  some  creditors,  474,  475. 

unless  where  fraudulent  within 
Insolvent  Act,  475. 

or  where  actual  fraud,  476. 

voluntary  trust  by,  whether  revo- 
cable or  valid,  476. 
must  be  strictly  fulfilled,  476. 

trust  apparently  voluntary  may  be 
shown  aliunde  to  be  founded  on 
value,  477. 

(&)  trader  may  not  assign  whole 
property  upon,  477.  See  Bank- 
ruptcy  (Assignment),  and  479. 

where  assignment  unimpeachable 
under  late  Bankrupt  Act,  and 
when  trustees  may  safely  act 
under,  479,  480. 

may  assign  part  of  property  upon, 
480  ;  and  see  477,  note  [w). 

Irrevocable,  trusts,  are  where  by 
way  of  security  to,  or  arrange- 
ment with  creditor,  481. 

voluntary  trusts,  how  far  revoca- 
ble, 101,  476,  481,  483. 
Created  by  will,  474 ;  and  see  485. 
Trustees  for  payment  of  their  Duties, 

c.  XVII.  474. 
Debts,  what  payable. 

(1)  in  trust  created  by  deed,  debts 
owing  at  date  thereof,  (2)  by 
will,  debts  owing  at  death  of 
testator,  483,  484 ;  unless  where 
contrary  intention,  ib. 

construction  of  "  all  debts  then  ow- 
ing by  him  and  which  affect  the 
estates  thereby  conveyed,"  484. 

creditors  who  come  in  within  a 
certain  time,  clause  is  direc- 
tory, 486. 
but  creditor  who  repudiates 
deed,  cannot  afterwards  take 
benefit  of  it,  ib. 
where  trustees  have  discretion 
to  admit  creditors'  claims, 
486. 

infant,  debts  contracted  by,  for 
necessaries,  485. 

Limitation,  Statute  of,  debts  bar- 
red by,  at  date  of  deed,  or  of 


INDEX. 


757 


DEBTS,  continued. 

testator's  death,  not  revived  by 
trust,  484 ;  see  p.  520,  statute 
will   not   run  afterwards,  484 ; 
as  to  trust  by  will  of  personalty, 
see  485. 
mortgagee  of,   with    covenant,   or 
other  creditor,  with  specific  lien, 
485,  486. 
Interest   on,  bond  creditors  cannot 
receive  more   than  amount   of 
penalty,  491. 
specialty  debts    carry  interest  to 
time  of  payment,  even  though 
released  by  creditors' deed,  491. 
simjsle  contract  on  debts  not  al- 
lowed under  trust,  490. 
as  to  rights  of  creditors  after 
decree  under  46th  Order  of 
Aug.  1841,  490,  note(<7). 
exception  to  rule,  490. 
unless  creditors  have  stipulated 
for  it,  491. 
Order  of  payment. 

creditors  paid  before  legatees,  487. 
all  creditors  paid  pari  passu,  in  ab- 
sence of  contrary  directions,  488. 
whether  trustee  and  executor  may 
pay  his  own  debt  first,  488. 
Resumption  by  trustees  of  property 
after  parting  with  it,  487,  522. 
DECLARATION, 

Principle  of  rejecting,  when  not  tes- 
tamentary (as  to  wills),  65.     See 
Wills,  Statute  of. 
Trust  of,  how  made  at  common  law, 
56.     See  Averment. 
how  under  Statute  of  Frauds,  62. 
See  Frauds,  Statute  of,  and  see 
Voluntary  Assurance. 
DECREE, 

Judgment,  decree  has  effect  of,  under 

1  &  2  Vict,  c.  110,  s.  18,  667. 
Sale  for,  persons  to  convey  under, 
are    constructive    trustees,    839, 
note  {I)  ;  see  834,  note  («),  836, 
note  {x),  837,  notes  [a)  and  [h), 
882,  note  (/),  894,  note  [1],  and 
903,  note  (c). 
Suit  in,  paralyses  powers  of  trustees, 
523,  524,  544. 
DE  DONIS,  Statute  of. 

Estate  pur  autre  vie,  not  within,  603, 

note  (1). 
Trust,  not  within,  603. 
DEED.     See  Infant,  Lunatic. 

Acceptance  of  trust,  whether  it  should 

be  by,  238. 
Chattel  interest  in  land  (other  than 
copyholds,)  assignment  of,  unless 
by  deed  void  at  law,  600,  note  [d). 


Disclaimer  should  be  by,  233. 
Equitable  interests  usually  assigned 

by,  600. 
Parties  to,  where  good    as  between 
though  void  as  against  others,  478. 
Voluntary,  does    not  preclude   evi- 
dence aliunde  of  valuable  consid- 
eration,   as    against   persons  not 
parties,  477. 
Will    contrasted  with,  66  ;  and  see 
104,  230,  251,253,  410. 
instance   of  deed   in   form  testa- 
mentary in  character,  67,  note 
(5),  77,  note  [lo). 
DEFENDANT.     See  Costs. 

how  c.  q.  t.  and  trustees  ought  to 
be  brought  on  the  record  as  de- 
fendants to  suit,  855,  et  seq. 
where  legal  process  lost  through 
default  of,  equity  aids,  755,  note. 
DEFECTIVE     EXECUTION     OF 
POWERS, 
upon  what  principle  aided  in  equity, 
96,  97. 
DEFINITION, 
of  a  trust,  15. 
of  a  use,  2. 
DELAY.     See  Ladies. 
DELEGATION, 

Appointment  of  attorney  or  proxy, 

distinguished  from,  297. 
Conveyance  of  trust  estate  does  not 

transfer  powers,  266,  267,  297. 
Discretionai-y  trust  of,  actually  void, 
296. 
though  to  co-trustee  or  co-execu- 
tor, 290,  291. 
Executors  by,  distinguished  at  law 

and  in  equity,  296. 
Of  office  of  trustee,  not  permitted, 
290,  291. 
unless  by  settlor's  direction,  291. 
or  when  trustee  acts  as  agent,  and 
cannotlegallyretain  money,  292. 
or   where  moral  necessity  for  it, 
e.   g.   transmission    of  money, 
293,  et  seq. 
case  of  power  to  give  receipts,  449. 
Trustee  for  sale  may  not   delegate 
trust,  but  may  employ  agent,  422. 
DELIVERY,   of  deed.     See    Infant 
(Deed). 
Of  money   voluntary,   whether  any 
resulting  trust  upon,  178. 
DEMERARA.     See  Jurisdiction. 
Covenant  to  settle  lands  in,  not  bind- 
ing against  purchaser  with  notice, 
51. 
Mortgage  of  lands  in,  gives  no  lien 
unless  perfected  according  to  law 
of  colony,  49. 


758 


LE-n-IN    ON    THE    LAW    OF    TRUSTS,    ETC. 


DEMURRER.  See  Statute  of  Frauds. 
defendant  may  avail  himself  of  Sta- 
tute of  Limitations  by  demurrer, 
734;  whether  when  bill  charges 
fraud,  735 ;  not  in  case  of  presump- 
tion, 738. 
DENIAL,  false  by  answer,  &c.     See 

False. 
DEPOSIT.     See    Mortgage  (Equita- 
ble), 
on  sale  by  auction,  427. 
DESCENT.     See  Heir. 

Broken  by  devise  upon  trust,  case  of, 

G80. 
Half  blood  may  now  inherit,  680. 
Proceeds   from    sale   of   gavelkind 

lands,  680. 
Trusts  of,  c.  XXII.  s.  10,  680. 
Trusts,  descends  as  legal  estate,  680. 
though  there  be  lex  loci,  ib. 
so  in  copyholds,  45,  680. 
possessio  fratris  of,  618,  680. 
"  DESIRE," 

may  raise  a  trust,  167. 
DEVASTAVIT   of  executor,  how  it 
affects  co-executor,  304,  316. 
Trustee,  improperly  releasing  debt, 
liable  for,  521. 
DEVISE.     See  Copyholds;   Custom,' 
arij  Freeholds ;  Frauds^  Stat,  of; 
Wills,  Stat,  of 
Consideration,  a  devise  implies,  58, 

167. 
General  words,  where  legal  estate  in 
trustee,   passes   under,  262,  et 
seq.,  see  note  (1). 
not  when  charge  of  debts  or  direc- 
tion to  sell,  263. 
complication  of  limitations,  or 
devise  to  A.  for  life,  or  in  tail 
with  remainders,  264. 
devise  to  woman   for  separate 
use,  264. 
passes  where  estate  contracted  to 
be  sold,  268  ;  by  devise  of  "my 
real   estates"  "to  A.  and   his 
heirs  for  his  and  their  own  use, 
&c.,"  264;  devise  to  two  as  te- 
nants in  common  in  fee,  264 ; 
to  woman  for  her  own  use,  264. 
Implied  by  the  word  "  trustee,"  250. 
Mortmain,  devise  upon  secret  trust 
in,  whether  void  at  law,  78,  79,  and 
see  73. 
"  Securities  for  Money,"  mortgage  in 

fee  passes  under,  264. 
Several  to,  good  as  to  one,  void  as  to 
another,  73. 
to  alien  and  British  subject,  upon 
trust,  39. 
Trust,  devise  of,  615,  et  seq. 


in  copyholds,  615 ;  in  customary 
freeholds,  616, 617 ;  in  freeholds, 
615,  617. 
Trustee,  whether  he  ought  to  devise 
trust  estate,  265,  266;  see  General 
Words,  sup. 
Void,  is  not,  merely  because  devisee 
means  to  execute  unlawful  trust, 
73. 
DEVISEE, 

Debtor  of,  liable  to  specialty  credi- 
tor, 239  ;  now  to  simple  contract 
debts,  ib.,  note  (c). 
Devise  on,  without  any  reference  to 
trust,  devisee    takes   benefi- 
cially, 68. 
even  though  testator  leave  un- 
attested declaration  of  trust, 
ib. 
exceptions  in  case  of  charge  of 
debts,  &c.,   69 ;   in   case   of 
fraud,  70;  in  case  of  engage- 
ment   to    execute    unlawful 
trust,  71 ;  but  see  72,  73. 
Renewing  lease,  where   devise  sub- 
ject to  debts,  &c.,  holds  for  benefit 
ofall  parties,  218. 
Secret  trust,  devisee  must  discover, 

70,  71,  73. 
Trusts,  whether  devisee  can  execute 
where   ti-ust  confided  to  trustee, 
"his  assigns,"  266,  267. 
Trustee,  devisee  of  is  bound  by  trust, 
279. 
DEVOLUTION.     See  Descent. 
Equitable  Estate  of.     See  Trust. 
Legal  Estate  of  in  trustee.     See  Le- 
gal Estate. 
DIRECT  TRUSTS, 

c.  VII.  s.  1,  p.  140.      See  Express 
trusts. 
DIRECTION  to  employ  A.  as  auditor, 
whether  it  raises  a  trust,  101. 
trustee  required  to  do  an  act  at  di- 
rection of  c.  q.  t.  542. 
DIRECTORY, 

Clause  in  will  for  settlement  of  chat- 
tels, 158,  et  seq. 
Powers,  527. 
DISABILITY, 

Persons  under,  when  barred  by  late 
Limitation  Act,  744  ;  see  720,  755, 
note. 
Trustee  of,  statutes  remedial  of:  see 
Trustee  Acts. 
DISAGREE.     See  Co-Trustees. 
DISCHARGE, 

of  trustee  from  ofiice,  290 ;  c.  xxi. 
p.  565  ;  s,QQ  Relinquishment. 
DISCLAIMER, 

Costs  of  disclaiming  trustee,  234, 874. 


INDEX. 


759 


DISCLAIMER,  continued. 

Counsel,  trustee  may  take  opinion  of 

as  to  disclaimer,  234. 
Deed  should  be  by,  not  by  way  of 
conveyance,  233  ;  but  see  note  (Z), 
and  449,  534. 
Effect  of,  237  ;  as  to  parties,  to  suit, 
847;   as  to  personal  contracts, 
237 ;  on  powers,  237,  532,  534 ; 
as  to  receipts,  449. 
after,  trustee  may  act  as  agent  to 
the  trust,  235. 
may   purchase   trust   property, 
462. 
Equity  in,  by  answer,  or  at  bar,  234  ; 
see  Costs,  sup. 
by  deed,  233. 

by  evidence  of  conduct,  but  this 
is  imprudent,  235. 
Failure  of  trustee  through  disclaimer 

relief  of  c.  ([.  t.  against,  G93. 
Feme  covert,  by,  236. 
Law  at  what  disclaimer  will  divest 
legal  estate,  235,  et  seq. 
as  to  chattels  by  parol,  236. 
as  to  freeholds  by  deed,  236,  of  spe- 
cial occupant,  ib. 
by  parol  (semble),  236  ;  by  mat- 
"  ter  of  record,  235. 
under  the  stat.  of  uses,  236. 
Protector  of  settlement    by,  under 

Fines  and  Recoveries  Act,  237. 
Receiver,  when  appointed  in  conse- 
quence of,  870,  871. 
Who  may  disclaim,  whether  heir  of 
trustee,  232. 
whether  trustee  who  (1)  accepts 
one  devise  can  disclaim  another, 
234  ;  (2)  disclaims  trusts  of  will, 
can  accept  bounty  under  same 
will,  ib. 
trustee  having   accepted,  cannot 
renounce,  289  ;  and  see  Accept- 
ance. 
DISCOVERY, 

of  secret  trusts  when  enforced,  70, 
72,  73  ;  see  Devisee,  Heir. 
DISCRETION.      See    Discretionary 
trusts,  Feme  Covert,  Infant.  _ 
of  trustees,  as  to  creditors'  claims, 
486  ;  contingent  remainders,  408  ; 
conversion,  806,  808,  815;  main- 
tenance, 542,  see  697  ;  objects  of 
charity,  542;  objects  of  trust,  701, 
705  :  renewal,  386. 
DISCRETIONARY  TRUSTS,  21,  22. 
See  Powers,  Imperative. 
couvt,how  far  it  controls,  538  et  seq. ; 

and  see  487,  and  Pow  ers,  542. 
delegation  of  void,  296  ;  even  to  co- 
trustee, 297 ;  whether  exercisable 


by  trustees  appointed   by   court, 
450,  712. 
limited  to  trustees,  their  heirs  and 

assigns,  267. 
for  sale,  purchaser  cannot  question 
exercise  of,  417. 
DISSEISIN, 

may  be  of  a  trust,  618,  et  seq. 
outstanding   term    attended,  inheri- 
tance gained  by,  288,  note  (1). 
DISSEISOR   not   bound   by  a  trust, 
18,  287,  288 ;  and  see  747,  or  by  a 
use,  3. 
DISSENTERS.     See  Chapel. 

court  will  execute  trust  for,  if  not 

contrary  to  law,  497. 
how  trusts  of  funds  contributed  by, 
are  expounded,  ib. 
DISTRESS, 

effect   of  as  to   confirmation,  473: 
laches,  471 ;  release,  778  ;  waiver, 
737. 
DISTRIBUTION, 

Trust  Fund,  of,  c.  xiii.  s.  v.  p.  365, 
et  seq. ;  see  Release,  Trustee  Re- 
lief Acts. 
under  power  of  selection,  705,  706, 
note  (h). 
DISTRINGAS, 
c.  XXIX.  s.  3,  p.  858. 
Origin  of,  859. 

Restraining  Order  under  5  Vict.  c. 
5,  s.  4,  and  practice  as  to,  860, 
863. 
applies  to  stock  shares  in  the  bank 

or  any  other  company,  ib. 
special  grounds  necessary  to  ob- 
tain It,  ib. 
Writ  of,  under  5  Vict.  c.  5,  s.  5,  and 
practice  as  to,  860,  et  seq. 
applicable  only  to  stock  transfera- 
ble at  the  bank,  863. 
effect  of,  and  how  and  when  dis- 
charged, 862,  863. 
employed  sometimes  for  general 
safeguard,  863. 
DIVIDENDS, 

where  c.  q.  t.  is  tenant  for  life  of,  often 
received  bv  power  of  attorney,  594. 
DOMICILE,  ' 

Personal  estate  follows  the  person. 

47. 
Person  domiciled  abroad  generally 
not  a  fit  trustee,  40  ;  see  574, 576. 
710. 
DOUBTFUL  EQUITY, 

Purchaser,  whether  bound  by  notice 

of,  727,  728. 
Where  it  exists,  trustee  should  de- 
cline to  act  without   sanction  of 
court,  368 ;  will  be  allowed  costs 


760 


LEAVIN    ON    THE    LAW    OF    TRUSTS,    ETC. 


DOUBTFUL  EQUITY,  continued. 
of  application,  368  ;  c.  q.  t.  plain- 
tiff, who  fails  to  establish  claim, 
allowed  costs  ;    secus,  in  case  of 
contingent  interest,  ib. 
DOWER, 

Attached  to  legal  estate  in  feoffee  to 
uses,  3. 
to  legal  estate  in  trustee,  260. 
but  dowress  bound  in  equity  by 

trust,  11,  18,  279. 
formerly  not  to  trusts  or  equity  of  re- 
demption, 12,  (j21,  and  why,  625. 
whether  to  money  to  be  laid  out 

on  land,  793,  794. 
not  to  a  use,  4. 
Dower  Act,  626,  795 ;  does  not  ap- 
ply to  copyholds,  621,  626. 
Dowress  may  recover  in  equity  on 

legal  title,  755,  note. 
Trustee,  when  he  should  join  in  con- 
veyance, 596. 
of  equity  of  redemption,  his  costs 
in  foreclosure  suit,  872. 
DRUNKEN, 

where  executor  and  in  great  poverty, 
receiver  appointed,  870. 
DUPLICATION, 
of  charges,  167. 
DURATION, 

of  private  trusts  limited  to  a  life  or 
lives  in  being  twenty-one  years 
(otherwise  of  public  trusts,  23), 
see  103,  111. 
trust  exceeding  this  limit  void  in 
toto,  111. 
DURESS, 

effect  of,  as  to  acquiescence,  confir- 
mation, or  release,  778  ;  see  473, 
737. 
DUTIES  OF  TRUSTEES.    See  Bill, 
Co-trustees,  Executors,  Investment. 
Acceptance  of  office,  consequent  on, 

243,  244. 
Advantage  trustee  must  not  derive 

from  trust,  318. 
Answer:  1,  as  to  joining  in,  856  ;  2, 
as  to  submitting  disputed  point  to 
court,  872. 
Breach  of  trust  on,  by    co-trustee, 

317 ;  see  Cotrustee, 
Care,  trustee  should  take  same,  of 
trust  property  as  of  his  own,  332. 
Charities  for  ;  see  Charities. 
Chattels,  personal  of,  c.  xiii.  p.  327. 
Contingent  remainders,  for  preserv- 
ing, c.  XV.  p.  404  ;  see  Contingent 
Remainders. 
Control,  trustee  must  not  place  trust 
premises  out  of  his  own  control, 
334. 


Convey,  when  trustee  must  convey 
at  direction  of  c.  q.  t.,  595,  596  ; 
see  600. 

Custody  of  trust  chattels,  as  to,  c. 
XIII.  s.  2,  p.  332. 

Debts,  for  payment  of,  483 ;  see 
Debts. 

Delegation,  trustee  must  not  make 
of  trust,  &c.,  290  ;  see  Delega- 
tion. 

Dispute  the  trust,  trustees  must  not, 
325;  see  878. 

Distribution  of  trust  fund,  c.  xiii.  s. 
5,  p.  365. 

Expenses,  to  keep  account  of,  559  ; 
to  control,  see  558. 

Impartial,  should  be,  as  between  cs. 
q.  t.,  414;  conf.  340,  421,  574, 
597. 

Information,  to  furnish  to,  c.  q.  t., 
427,  599 ;  to  court,  as  to  trust,  375. 

Insurance,  as  to,  332,  516  ;  see  764. 

Investment,  as  to,  c.  xiii.  s.  3,  p.  337 ; 
see  Investment. 
in   bank  must  be  trust  account, 
332,  336. 

Lend  to  co-trustee,  trustee  must  not, 
345 ;  nor  leave  money  in  hands 
of,  see  309,  316,  and  Co;i/'?'o/,  supra. 

Mix,  trustee  must  not,  trust  premi- 
ses with  his  own,  337;  or  stranger's, 
350. 

Notice,  trustee  of  equitable  interest 
should  give,  to  holder  of  legal  es- 
tate, 326;  see  605. 

Outstanding  property  and  choses  in 
action,  to  call  in,  326,  328  ;  see 
765. 

Renewal  of  leaseholds,  c.  xiv.  p.  383 ; 
see  Reneioable  Leaseholds. 

Repairs,  513;  see  827,  (and  conf. 
524),  and  830. 

Sale  for,  c.  xvi.  p.  414  ;  see  Sale. 

Speculate,  trustee  must  not  with 
trust  property,  319  ;  see  362. 

Suit  by  trustee,  317,  368;  or  trus- 
tee concurring  in,  756. 

Trade,  trustee  must  not  employ  trust 
money  in,  340,  361,  et.  seq. ;  see 
760. 

Trustee  may  be  compelled  to  per- 
form duties,  718  ;  see  597,  723. 

EARMARK, 

meaning    of   term    as    applied    to 
monev,  &c.,  275,  757,  758. 
EAST  INDIA  COMPANY, 

securities  of,  355  ;  see  835,  note  [q). 
EAST  INDIES, 

whether  executors  in,  may  charge 
commission,  547;  and  see  note  [n). 


INDEX. 


761 


EAST  INDIES,  continued. 

lands  in,  within  Trustee  Acts,  835, 
note  {s)  ;  see  901. 
ECCLESIASTICAL  COURTS, 

have  no  jurisdiction  of  trusts,  19,  2G1. 
EDUCATION.     See  Poor. 
EJECTMENT.     See  Actions. 

cannot  be  brought  by  c.  q.  t.,  unless 

surrender  presumed,  591. 
may  by  trustee  even  against  c.  q.  t., 
591. 
ELECTION,  by  c.  q.  i.,  as  to  land  to 
be  converted  into  money,  and  vice 
versa. 
By  whom  made. 

Feme  covert  cannot  elect,  816. 
but  as  to  money  to  be  laid  out 
in  land,  bound  by  consent  in 
court  of  equity,  817. 
under  Fines  and  Recoveries  Act 
can  dispose  of  estate,  or  in- 
terest in  land,  or  money  to  be 
laid  out  in  land,  817. 
even  contingent  interests  by  8 
&  9  Vict.  c.  106,  s.  5,  817, 
note  (n). 
reversionary  interest  in  money 
to  arise  from  sale  of  land,  818. 
or  semble  in  legacy  raiseable 
out  of  land,  ib.,  and  note  [I). 
when  tenant  in  tail,  see  inf. 
Infant,  cannot  elect,  816. 
Lunatic,  cannot  elect,  ib. 
Remainderman  in  fee,  may  elect, 
so  as  to  bind  real  and  per- 
sonal   representatives,   inter 
se,  818. 
but  subject  to   right   of  prior 
owner  to  call  for  conversion, 
818. 
actual  conversion  by  prior  owner 
would  defeat  intended  elec- 
tion, semble,  819. 
Tenant  in  common,  &c., 

cannot  singly  elect  against  sale 
of  his  share  of   land  to  be 
sold,  819. 
may   singly   elect    to   take   as 
money  his  share  of  money  to 
be  laid  out,  819. 
Tenant  in  tail  might  elect  by  suit 
as  to  money  to  be  laid  out  in 
land: — 1.    Where  remainder 
limited   to   himself,  819;    2. 
"With  consent  of  remainder- 
man, 820. 
or  even  without  suit,  820,  821  ; 
and  semble,  even  since  Fines 
and  Recoveries  Act,  822 ;  but 
see  823. 
by  petition,  under  39  &  40  Geo. 
May,  1858.— 49 


3,  c.  56,  821  ;  and  notes  {/) 
and  (I). 
under  Fines  and  Recoveries  Act 
may  dispose  of  land,  or  money 
to  be  invested  in  land,  822. 
Trustee,  his  act  shall  not  alter  c. 
q.  t.'s  estate,  825,  et  seq. 
How  made,  by  express  declaration, 
823  ;  as  to  a  will,  see  825. 

even  by  parol,  as  between  real 
and  personal  representatives, 
824. 
excepted  out  of  Lord  St.  Leo- 
nards' Trustee  Act,  839. 
Presumed,    823 ;    (whether    know- 
ledge of  c.  q.t.  necessary),  824. 
[a)  where  land  to  be  converted ; 
e.  g.  by  c.  q.  t,,  granting  lease, 
reserving   rent  to  himself  and 
his  heirs,  824 ;    keeping  land 
unsold,  823  ;  entering  into  pos- 
session, and  taking  custody  of 
title  deeds,  ib. 
(6)  where  money  to  be  converted  ; 
e.  g.  by  c.  q.  t.  changing  secu- 
rities, «&c.,  824;  receiving  the 
money,  823 ;   see  804 ;  not  by 
mere  receipt  of  income,  823  ; 
from  c.  q.  t.'s  will  (formerly  even 
unattested),  825. 
Until  made,  special  trust  proceeds, 
598. 
of  clerk  by  parishioners,  107-110  ; 

see  Parishioners, 
of  member  of  parliament,  c.  q.  t. 
may  vote  for,  270,  593. 
ELEGIT.     See  Judgment. 

Equitable  interest,  it  binds,  649 : 
formerly  held  otherwise,  12. 
what  portion  of  trust  estate  might 
formerly  be  taken  in  execution 
under,  658  et  seq. ;  and  see  659, 
note  [y). 

of  equity  of  redemption,  660. 
of  trust  in  nature  of  mortgage, 

661. 
entirety  under  1  &  2  Vict.  c. 
110,  s.  11,666. 
when  elegit  must  be  sued  out  be- 
fore application  to  equity,  662  ; 
and  see  note  (t). 
Estate  by,  in  trust  for  feme  covert, 

630. 
Origin  of,  647. 

Remedy  of  at  law  by  possession,  658, 
note  (w),  and  see  659,  note  [y). 
as  to  trust  estate  under  Statute  of 
Frauds,  664,  et  seq. 
under  1  &  2  Vict.  c.  110,  669. 
tenant  by,  not  bound  by  a  use,  3 ; 
is  by  a  trust,  280. 


762 


LEW  IN    ON    THE    LAW    OF    TRUSTS,    ETC. 


ENTAILS, 

Equitable,  barred  how,  602,  604. 
customary  estates  in,  depend  on 
custom  to  entail  legal  estate,  46, 
and  see  note  (e). 
history  of,  601,  et  seq. 
'  ENTREATING," 

may  raise  a  trust,  167. 
EQUITABLE  ESTATES.  ^Q^Mergcr. 
assignment  of  how   made,   603  ; 

precautions  in,  604  et  seq. 
compared  with  legal,  44,  103,  et 

seq.  140,  141. 
purchasers   of    when    bound    by 

trusts,  729  ;  see  725. 
a  series  of,  596  ;  see  848. 
Mortgage.   See  Mortgage,  Equitable. 
Powers, 

distinguished  from  legal,  525. 
collateral  or  annexed   to   estate, 
526. 
T^aste,  225  ;  and  see  514. 
EQUITY.   Bars  to  claims  in,  731 ;  see 
Limitation,  Mesne  Rents. 
Courts   alone   have  jurisdiction    of 
Trusts,  19. 
can  act  in  personam,  47  ;  and  see 
Jurisdiction. 
Doubtful,    367,   whether  purchaser 

bound  by,  596,  848. 
Redemption  of;  see  Mortgage,  Mort- 
gagee; Mortgagor. 
barred  by  lapse  of  time  when,  733. 
chattel,  of  a,  may  be  taken  under 

equitable  fi.  fa.  649. 
copyholds  of  where  formerly  liable 

as  assets,  661,  note  (1). 
distinguished  from  a  trust,  284. 
forfeitable  for  treason,  677. 
judgment  creditor  entitled  to  sale 

of  entirety,  660. 
subject  to  curtesy,  formerly  not  to 
dower,  12,  621,  and  see  626. 
Settlement  to,  see  Feme  Covert. 
Trustees  of  mere  equity,  596,  848. 
ESCHEAT.     See  Failure  of  c.  q.  t. 
Copyholds  not  properly  subject  to 
escheat,  283. 
lord  bound  by  trust  entered  on  the 

roll,  ib. 
qu.  if  in  case  of  customary  free- 
holds, 284. 
Equitable  interest  not  subject  to,  c. 

XXIII.  s.  9,  p.  678,  see  14. 
Law  of,  now  altered  by  late  statute, 

285,  et  seq. 

Lord   may  redeem   mortgage  term 

created  by  person  whose  estate 

has  been  escheated,  285  ;  subject 

to  debts  of  such  person,  ib. 

does  not  take   raortcrao-e    in    fee 


on  mortgagor's  death  intestate 
without  heirs,  679. 
whether  formerly  bound  by  a  trust, 
14, 18,280,  et  seq. ;  not  by  use,  3. 
Money  to  be  be  laid  out  on  land  not 
subject  to,  795. 
ESTATE, 

Pur  autre  vie,  see  Pur  Autre  Vie. 
Trustee,  what   he  takes  at  law,  c. 
XI.  p.  246,  and  see  Legal  Estate. 
ESTOPPEL.    305. 
EVIDENCE.   See  Affidavit ;  Frauds, 

Stat,  of;  Parol;  Trustee  Acts. 
EXCHANGE.  See  894,  Charity  lands 
of,  with  eonsent  of  commission. 
504. 
Power  of  sale  and  exchange  a  "  usual 
power,"  164  ;  see  166. 
whether  it  authorizes  partition,417. 
EXCHEQUER, 

Court  of,  whether  it  could  relieve  c. 
q.  t.  as  against  royal  trustee,  30. 
transfer  of  equity  jurisdiction  to 
court  of  chancery,  859. 
EXCHEQUER  BILLS, 

whether  government  security,  342, 
note  (/). 
EXECUTED  TRUSTS, 
what,  144,  et  seq. 

how  construed,  141.    See  Executory 
trusts. 
EXECUTION, 

Chattels  of  by  fi.  fa.  646.    See  Jiidg- 
ment. 
from  what  time  chattel  interests  in 

lands  are  bound  by,  647. 
of  trust   chattels.   648,    662 ;    of 
stock,  648,  669,  et  seq. 
for  debt  of  trustee,  261, 
Creditor,   taking   trust    chattel    in, 
bound  by  trust,  283  ;   whether  he 
can  by  execution  levy  debt  upon 
property  subject  to  voluntary  trust 
for  debts,  476. 
Defective  of  powers  of,  upon  what 
principle  aided  in  equity,  96. 
EXECUTOR.     See  Foreign,  Lifant, 
Relinquishment  (Representative) . 
Acceptance  of  office,  what  acts  con- 
stitute, 241, 242 ;  and  see  Accept- 
ance. 
having     once    acted    cannot  re- 
nounce, 289. 
notwithstanding  he  has  not  proved, 

290  ;  see  838,  note  [d). 
may  renounce  probate  and  claim 

legacy,  234. 
executor  of  executor  administer- 
ing to  one  testator  must  to  the 
other,  234. 
Assent  of,  to  bequest,  243,  454. 


INDEX. 


•63 


EXECUTOR,  continued. 

Assets  personal  in  hands  of  execu- 
tor, a  species  of  trust  property  at 
common  law,  261. 
e.g.  cannot  be  taken  in  execution 
for  executor's  debt  not  forfeit- 
able for  felony,  &c.,  262. 
vest  in  executor's  executor,  260. 
not   in   executor's  administrator, 
262 ;    and   see    Feme    Covert, 
(executrix). 
Agent  acting  under  executor's  direc- 
tion, 459. 
Co-executor.  See  Co-trustee,  Powers, 
inf. 
compared  with  co-administrator, 
316. 
with  co-trustee,  310  ;  see  317. 
duties,  he  must  uot   depend   on 
mere  representation  of  co-exe- 
cutor, 315. 
especially  where  testator  long 

dead, ib. 
should  call  in  debt  owing  from 
co-executor  to  testator's  es- 
tate, 329. 
should  notleave  money  in  hands 
of  co-executor,  316  ;  see  314. 
whether  executors  may   place 
money  in    bank  payable  to 
either  co-executor,  336. 
liability   depends   on  acting,  not 
mere  joining  in  act,  312. 
answerable  for  putting   assets 
into  sole  hands  of  co-execu- 
tor, 314. 
how  far  for  devastavit  of  co-exe- 
cutor, 289,  304,  316. 
not  generally    answerable    for 
acts  or  defaults  of  co-execu- 
tor, 310. 
whether  for  joining  in  receipts 

pro  forma,  310,  et  seq. 
not  for  joining  in  nugatory  acts, 
311 ;  or  in  acts  ex  necessitate, 
315  ;  e.  g.  indorsing  bill   of 
exchange  payable  to  two  per- 
sonally, or  transfer  of  stock, 
ib. ;    unless  act  be  with  im- 
proper view,  ib. ;  see   as  to 
liability  at  law,  296. 
survivorship  of  office,  300  ;  of 
powers,  536. 
Charge,   he   may   not,  for  time  or 
trouble,  546. 
where  entitled  to  commission  for 
administration  in  East  Indies, 
547,  note  (n). 
Costs  allowed  to  executors  in  credi- 
tor's suit,  873. 
executors,  who  are  necessary  par- 


ties in  suit  by  stranger,  unsuc- 
cessfully contesting  his  claim, 
pay,  872  ;  and  see  Costs. 
Covenants,  what  may  be  required 
from  executors  of  one  who  ha.s 
agreed  to  take  a  lease,  425,  note 
(A-). 

by  executors  of  lessee  on  assign- 
ment, 426. 
Decree  after,  he  may  not  pay  debts  or 

invest  assets  without  sanction  of 

court,  524. 
Devastavit.     See   Co-executor,  sup., 

Liabilities,  inf 
Duties  of.     See  Liabilities,  inf. 
he  should  not  allow  assets  to  remain 
on  personal  security,  329. 

but  not  liable  if  legal  proceedings 
would  be  useless,  ib. 

may  allow  assets  to  remain  on 
mortgage,  329. 

should  uot  allow  outstanding  debts 
which  carry  interest,  358. 

after  payment  of  debts,  &c.,  must 
account  for  surplus,  or  charge- 
able with  interest,  358. 

and  no  excuse  that  he  did  not  use 
the  money,  359. 

but  not  so  charged  during  first 
year  from  testator's  death,  364. 

must  not  trade  with   assets,  360, 
361  ;  and  see  340,  364. 
Indemnity,  what  he  may  require  as 

to  leaseholds,  426,  and  see  Indem- 
nity, 
Liabilities.    See  Co-executor,  Duties, 
sup. 

whether  answerable  to  creditors 
when  not  to  legatees,  313,  314. 

for  devastavit,  296 ;  conf.  521.  See 
Co-executor,  sup. 

whether  for  paying  debts  barred 
by  statute,  520. 

whether  for  omission  to  insure,  or 
for  robbery,  332.  See  Insurance. 
Lunatic,  &c.,  see  Trustee  Act,  s.  6. 
Mortgage.     See  Powers,  inf. 
Next  of  kin,  executors  are  trustees 
for,  of  undisposed  residue,  59. 

where  no  next  of  kin  executors 
take  beneficially  as  against  the 
crown,  59,  324. 
Powers  of,  to  deposit  mortgage,  or 
sell  personal  estate  and  to  give 
receipts,  453,  et  seq. ;  see  457. 

even  without  concurrence  of  co-ex- 
ecutor, 453 ;  or  when  specifically 
bequeathed,  454 ;  but  see  458. 

except  where  fraud,  &c.,  455,  et  seq. 
e.  g.  sale  at  nominal   price  or 
undervalue,  456 


764 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


EXECUTOR,  continued. 

sale  or  pledge  to  secure  execu- 
tor's private  debt,  456. 
even  where  executor  joint  spe- 
cific or  joint  residuary  lega- 
tee, or  subject  to  a  charge, 
457. 
secus,  where  he  is  sole  specific 
or    sole   residuary   legatee, 
456. 
case  where  executor's  creditor 
has  express  notice  of  unpaid 
debts  of  testator,  457. 
sale,  &c.,  for  executor's  private 

advantage,  457. 
sale,  &c.,  of  chattels  specifically 
bequeathed  where  purchaser 
has  notice thattestator's  debts 
have  been  discharged,  458. 
sale,  &c.,  where  misapplication 
probable,  458. 
how  far  safe  to  deal  with  executor 
after  long  interval  from  testa- 
tor's death,  458. 
who  may  impeach  fraudulent  sale, 
&c.,  by  executor,  459;  and  see 
Decree,  sup. 
Purchase,  executor  may  not  purchase 

assets,  465. 
Receipts.     See  Co-executor,  Powers, 

sup. 
Receiver  appointed  where  husband 
ofexecutrixoutofjurisdiction,870. 
Renewal,  of  lease  by,  219,  220. 
Survivorship.  See  Co-executor,  sup. 
Trading  with  assets,  360, 36 1 ;  see  340. 
Trust,  whether  it   can   be   averred 

against  executor,  59. 
Trustee,  executor  of  bound  by  trust 
of  chattels,  279. 
specifically  bequeathing  trust  pro- 
perty, qu.  whether  executor  with 
specific    legatee    can    execute 
trust,  267,  conf.  297, 
when    executor   converts  himself 
into  a  trustee,  243. 
EXECUTORY  BEQUESTS,  see  104. 
EXECUTORY    TRUSTS,   see    144, 
158,  727. 
Construction    of,  in  Marriage  Ar- 
ticles, see  146,  152,  note  (c). 
Chattels,  "  heirs  of  body"  applied  to, 
construed   limitation   to   eldest 
son  as  heir,  and  if  no  son,  to 
daughters,  as  co-heiresses,  149. 
notwithstanding  death   of  son  or 
daughter   in    parent's  lifetime, 
unless  contrary  implication,  ib. 
agreement  to  settle  on  same  trusts 
as  real  estate,  what  limitations 
it  authorizes,  150-152. 


Joint  tenancy  in  articles  construed 

tenancy  in  common,  152. 
Real  estate  "  heirs  of  body,"  or  "  is- 
sue," applied  to,  construed  first 
and    other    sons    in     tail    as 
purchasers,  147,  remainder  to 
daughters,  as  tenants  in  com- 
mon in  tail  with  cross  i-emain- 
ders,  149,  (except  where  express 
provision  for  daughters  by  ar- 
ticles,) ib. 
exceptions — where  husband's  pro- 
perty limited  to  heirs  of  body  of 
wife',  148;  qu^re,  however,  since 
Fines  and  Recoveries  Act,  ss. 
16,  17. 
where  articles,  by  limitation  of  part 
of  estate,  to  parent  for  life,  re- 
mainder to  first  and  other  sons 
in  tail  or  otherwise  negative  this 
construction,  148. 
*'  heirs  female"  construed  daugh- 
ters, 149. 
Words  supplied  in,  articles,  153. 
Construction  of,  in  Postnuptial  Set- 
tlements, 164. 
Construction  of,  in  Wills,  153,  et  seq. 
Chattels,  how  executory  trusts  as  to, 
construed,  158,  163. 
semble,  that  chattels  bequeathed 
as  heir-looms,  with  real  estate, 
vest  absolutely  in  first  tenant  in 
tail,  though  he  die  an  infant,  163. 
but  a  limitation  over  on  tenant  in 
tail  dying  under  21,  is  lawful, 
and  may  probably  be  inserted 
where  testator  manifests  distinct 
intention,  163. 
Real  estate  (a)  heirs  of  the  body, 
construed  to  give  estate  tail  to  A., 
e.  g.  in  trust  "  for  A.  and  the  heirs 
of  his  body,"  153. 
"  for  A.  and  the  heirs  of  his  body 

and  their  heirs,"  153. 
"  for  A.  for  life  and   after  his 
decease  to  the  heirs  of  his 
body,"  153. 
estate  "  directed    to  be  settled" 
upon  A.  and  her  children,  and 
if  she  died  without  issue,  153. 
upon   A.  for  life,  remainder  to 
his  heirs  male  and  the  heirs 
male  of  every  such  heir  male, 
&c.,  154. 
executory  trust  for  A.,  and  trus- 
tees not  to  give  up  their  estate 
till  proper  entail  was  made  to 
the  heir  male  by  him,  154. 
devise   to  A.,  with  direction  that 
estate  should  be  entailed  on  heir 
male,  how  construed,  154. 


INDEX. 


765 


EXECUTORY  TRUSTS,  continued, 
(b)    heirs    of    the    body    construed 
first  and  other  sons,  &e.,  where 
intention  shown,  154. 
as  by  directinpf  settlement  to  A., 
for    life,   "  without  impeach- 
ment of  waste,"  or  with  "limi- 
tation" to  preserve  "contin- 
gent remainders,"  154,  155. 
on  feme  covert  for  life  for  sepa- 
rate use,  155. 
or  by  direction  to  settle  on  A.  and 
the  heirs  of  his  body  as  counsel 
shall  advise,  &c.,  155. 
where  testator  directs  settlement, 
but    formally   declares    limita- 
tions, 157. 
Generally,    daughters    included   in 
"  heirs  of  body,"  or  "  issue,"  149, 
156. 
Duplication  of  charges,  167. 
Gavelkind  lands,  as  to,  157. 
"  Heirs  of  the  body,"  and  "  issue" 

distinguished,  155. 
Limitation  to   trustees   to  preserve 
whether   now   inserted,    156,  see 
408,  418. 
Notice  of,  727. 

Powers,  what  may  be  inserted,  164, 

et  seq. ;  "  usual,"  ib. ;  proper,  166. 

Protector,  special,  whether  court  will 

insert  under  Fines  and  Recoveries 

Act,   156. 

Rectification  of  settlement,  148,  note 

{g) ;  and  see  Settlement. 

EXONERATION.       See     Contract, 

Mortgagor. 
EXPECTANCY, 

voluntary  assignment  of,  whether  it 
creates  a  trust,  92;  see  Voluntary 
Assurance. 
EXPENSES.     C.  XX.  s.   2,   p.   557. 
See  Costs,  extraordinary  outlay. 
Allowance  for,  to  trustees,  557,  even 
where    express    allowance   for 
trouble,  558. 
extra  costs,  558,  fees  to  counsel, 
ib.,  of  fines,  272,   of  renewal, 
222,  of  release,  375,  travelling 
expenses,  557 ;    and  see  Keio 
trustees. 
Account  of,  trustee  should  keep,  559. 
where  none  kept,  what  allowance 
made,  ib. 
Lien,  are  upon  the  trust  estate,  560, 
561;  and  see  222. 
how  far  where  trust  extends  to 

two  estates,  562. 
secus  in  respect  of  trustees'  agents, 
e.  g.  solicitors,  or  surveyors,  101, 
561. 


Moderated  charges  may  be,  and  how, 

558. 
Reimbursement  of,  how  made,  521, 

558,  564,  conf.  873. 
Remedy  for,  against  c.  q.  t.,  person- 
ally, where,  562  et  seq. ;  see  563, 
note  (x). 
Trust  to  pay  costs,  &c.,  construction 
of,  564. 
EXPRESS, 

Trusts,  c.  VII.  s.  1,  p.  140. 
Technical  terms,  how  far  necessary 
for,  140,  141,  their  force  when  em- 
ployed, 141. 
Trusts,  executed  and  executory  dis- 
tinguished, 144. 
what  are  within   late  Limitation 
Act,  743,  745,  note  {d),  et  seq. 
a  mere  charge  is  not,  secus  as  to 
a  charge  coupled  with  duty,  746. 
not  within  42nd  section  of  act  as 
to  arrears,  748. 
EXTENT, 

From  crown,  c.  xxiii.  s.  7,  p.  673. 
trust  affected  by,  673. 
could  not  be  sold  at  common  law, 

673,  may  by  stat.,  ib. 
equity  of  redemption  may  be  sold 
upon,  674. 
EXTRAORDINARY  OUTLAY, 
by  trustee,  whether  he  can  charge, 
559. 

FACTOR,  225.     See  Age^it. 

Bankruptcy  Act,  operation  of  as  to 
goods,  &c.,  in  his  possession,  274, 
275. 
only  takes  special  property,  275. 
FAILURE, 

Of  c.  q.  t.  of  personalty  by  death 
intestate  without  next  of  kin, 
198,  324. 
of  realty  by  attainder,  323. 

by  death  intestate,  and  without 

heirs,  197,  321. 
whether    settlor   can   assert   a 

claim,  323. 
whether  trustee  can  claim  ad- 
vantage, 321  et  seq. 
where  c.  q.  t.  has  devised  estate 
to  another  on   trusts  which 
fail,  devisee  entitled  as  against 
bare  trustee,  322. 
Of  trustee, 
relief  of  c.  q.  t.  against,  c.  xxiv. 

p.  693. 
by  death  of  trustee  in  testator's 
lifetime,  disclaimer  or  otherwise. 
693. 
direction  to  sell,  and  no  person  to 
sell  named,  694. 


-66 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


FAILURE,  continued. 

for  separate  use,  and  no  trustee 
appointed,  694. 
of  imperative  power,  694  et  seq. 
See  543 ;  Poicers. 
FALSE, 

Answer    by   corporation    (pleading 
ignorance,)  visited  with  costs,  878. 
Denial,  by  agent,  of  his  character, 
205. 
by  trustee  of  claims  of  c.  q.  t. 
visited  with  costs,  877. 
FAMILY, 

Differences,   settlement  of  a  good 

consideration,  94. 
Trust  for,   of  freeholds,  how   con- 
strued, 169. 
FARM  LEASES.     See  iease*. 
FATHER.   See  Advancement,  Parent. 
FEE, 

Equitable,  the  word  "  heirs"  not  ne- 
cessary to  create,  141. 
Fee  upon  a  fee,  distinction  between 
legal  and  trust  estates  as  to,  103. 
Legal,  vested  i»  trustee  by  trust  to 
sell,  &c.,  without  "  heirs,"  250. 
so  by  devise  to  A.  and  his  heirs 

upon  trust  to  pay  debts,  251. 
secus  where  gift  to  A.  and  his  exe- 
cutors, «&c.,  upon  trust  to  pay 
debts,  &c.,  ib. 
what  estate  taken  under  grant  to 
trustees  and  survivor,  and  heirs 
of  survivor,  251  ;    what  under 
devise,  252. 
FELONY,  28.     See  Forfeiture. 
of  c.  q.  t.,  323. 

works  forfeiture  of  equitable  chat- 
tels, 677. 
FEME  COVERT, 
Generally.    See  Fine,  Fines  and  Be- 

coveries  Act,  Husband. 
Acquiescence,  not  bound  by,  in  pur- 
chase by  trustee,  471,  generally, 
777. 
except   as   to   separate   property 

without  restraint,  471,  777. 
quasre,  where  restraint,  778. 
Advancement  for,  by  husband,  pre- 
sumed, 216. 
Breach  oftrust,  cannot  concurin, 774. 
unless  guilty  of  fraud,  774. 
or  as  to  separate  property  with- 
out restraint,  775  ;  see  778. 
remedy  for,  against  separate  es- 
tate, 639,  et  seq. 
by,  husband  liable  for,  34;   and 
see  261. 
Choses  in  action,  her  disability  as  to 
(possessory  or  revisionary,)  26. 
reduction  into  possession  of,  pos- 


sessory, 627,  631 ;  whether 
when  reversionary,  370  et  seq., 
627,  628. 
her  right  by  survivorship  to,  whe- 
ther possessory  (but  not  re- 
duced,) or  reversionary,  627, 
628. 
Confirmation  by.     See  Disabilities, 

infra. 
Curtesy,  in  respect  of.     See  Curtesy.  . 
Disabilities  of, 

cannot  conform  or  release  breach 
of  trust,  777,  as  to  purchase 
by  trustee,  472. 
except  as  to  separate  property 
if  without  restraint,  ib. 
cannot  consent  to  trustees'  relin- 
quishment of  office,  565 ;  and 
see  Breach  of  trust,  sup. 
cannot  at  common  law  pass  legal 
estate,  35. 
Disclaim,  how  she  may  interest  in 

land,  236. 
Discretion  of,  34. 
Dower,  her  title  to.     See  Dower. 
Election  by,  cannot  make,  816. 
secus  under  Fines  and  Recoveries 
Act,  817  ;  and  see  Election. 
Engagements  and  contracts  by, 
parol,  how  far  they  affect  sepa- 
rate property,  634  et  seq. ;  but 
see  639,  and  778. 
written,  id.  633. 

as  to  real  estate  under  Fines  and 
Recoveries  Act,  634,  note  (n)  ; 
and  see  Power,  inf. 
Equity  to  settlement,  as  against  as- 
signees in  bankruptcy  or  insol- 
vency of  husband,  369,  370;  as 
against  husband's  assignee  for 
value,   370 ;    none   against   as- 
signee for  value  of  life  estate, 
ib. 
in  equitable  chattels  real,  26,  629, 
630,  in  equitable  freeholds,  632. 
how  asserted  or  waived,  628. 
right  by  survivorship  distinguish- 
ed from,  628. 
Executrix,  assets  in  hands  of,  dis- 
posable by  husband  during  co- 
verture, 261. 
she  may  make  a  will  of  such  as- 
sets without  husband's  consent, 
261. 
Feoffment   on   condition    she   may 

make,  34. 
Fraud.     See  Breach  oftrust,  supra  ; 

Potrer,  infra. 
Power,    she    may    execute     power 
simply  collateral,  appendant,  or 
in  gross,  34. 


INDEX. 


767 


FEME  COVERT,  continued. 

general,  when  equivalent  to  sepa- 
rate estate,  775. 
estate  appointed  under,  not  assets, 
except  where  fraud,  768,  note 
[w). 
Practice.     See  Equity  to  Settlement, 

sup. ;  Separate  Use,  inf. 
Property  of.     See  Separate  Use,  inf. 
(a)  Equitable   not   settled   to  her 
separate  use,  her  chattels  per- 
sonal,  627  ;  chattels  real,  and 
contingent  interest  therein,  629 ; 
(effect  of  husband's  forfeiture 
upon,   677  ;)   choses   in  action, 
see  sup. ;  elegit,  estate  by,  630  ; 
freeholds,  631  ;  mortgage  term, 
631. 
as  to  effect  of  getting  in  legal  es- 
tate in  wife's    equitable  term, 
630. 
(6)  Legal, 
chattels   real,   husband   may   as- 
sign, 629  ;  secus  if  they  cannot 
vest  during  coverture,  630  ;  see 
26  ;  freeholds,  35  ;  see  25,  632; 
634,  note(?i),  Sn,  818. 
Restraint  against  anticipation,  sepa- 
rate estate.     See  inf. 
Reversionary  interests.     See  Choses 
in  Action,  sup. 
in  land,  or  money  arising  from,  or 
charged  on,  818. 
Survivorship,  her  right  by,  627,  628. 
Trust,  how  far  she  can  create,  25. 
Trustee,  she  ought  not  to  be  appoint- 
ed, and  why,  34,  35  ;  see  710. 
Will.     See   Executrix,  sup. ;  Sepa- 
rate  Use,  inf. 
liestraint  against  Anticipation,  123, 
what  words  will  effect,  123  ;   and 
see  129,  130,  632  note  {w). 
Arrears  of  income,  does  not  attach 

to,  642  ;  see  26. 
Discharged,     the     clause    may   be, 

during  discoverture,  124. 
Marriage  upon,  the  clause  operates 
during  the  coverture,  128;    see 
124,  et  seq.  Power  of  Appoint- 
ment, inf. 
second,  effect  of,  130  ;  see  631. 
Power  of  Appointment,  how  far  it 

discharges  restraint,  129,  130. 
Separate  Use.     See  Devise. 
Allowed  in  trusts,  120,  though   no 
trustee  interposed,  121,  728. 
husband,   construed  trustee,   ib. ; 
and  see  125  note  (x),  694  ;  but 
see  123. 
Arrears  of,  642  ;  and  see  26,  131. 
received  by  husband,  what  reco- 


verable by  wife  or  her  represen- 
tatives, 642. 
where  wife  is  non  compos,  644. 
whether   distinuisbable   from    ar- 
rears of  pin  money,  ib. 
Assets  equitable,  is  administered  as. 

642. 
Created,  by  what  words,  121,  122. 
what  words  insufficient,  121,  122. 
trust  must  be  clearly  expressed, 
121. 
Discharged,  may  be,  during  disco- 
verture, 124  ;  and  see  640. 
Engagements.     See    Engagements, 

sup. 
Feme  covert  is  considered  feme  sole 
as  to  separate  property,  26,  632  : 
and  see  Acquiescence,  Breach  oj 
trust,  Disabilities,  sup. 
Judgment,   trust   for   separate    use 
whether  within  1  &  2  Vict.  c.  110, 
s.  11  ;  666,  note  (a). 
Legal  estate,    what    trustees    take 
where   limitations  for,  247,  252. 
255. 
Liabilities  of  ferae  covert  in  respect 
of.  See  Breach  of  trust,  Engage- 
ments, sup. 
enforced    by    bill    against    feme 
covert  and  her  trustees,  not  a- 
gainst  her  personally,  640. 
notwithstanding  husband's  death. 

640. 
only   against    arrears    where    re- 
straint, &c.,  641,  642. 
after  death  of  wife  by  creditors' 
suit,  642.     See  Assets,  sup. 
Marriage  upon,  the  clause  operates. 
124. 
effect  of  second,  130,  631  ;  as  to 
arreai's,  131. 
Possession,  when  c.  q.  t.   entitled 
for  separate  use  is  put  into,  590  ; 
see  589. 
Power  of  appointment  when  equiva- 
lent to  ownership  for  separate  use, 
775. 
Practice   as  to,  in   proceedings  in 
equity,  633,  640. 
wife  sues  for  by  next  friend,  858  ; 
see  348. 
Real  estate,  her  acknowledgment  in 
conveyance  of    separate  use  un- 
necessary, 646. 
Savings  of.  See  Arrears,  sup. ;  Will, 

inf. 
Will,  by  feme  covert,  may  dispose 
of  separate  estate  and  accumu- 
lations, 642. 
undisposed    of    survives  to   hus- 
band, ib. 


768 


LEW  IN    ON    THE    LAW    OF    TRUSTS,    ETC. 


FEME  SOLE, 

ought  not  to  be  trustee,  and  -why, 

35. 
trustee  marrying  may  be  removed, 
710. 
FEOFFMENT.     Forfeiture,  by,  678. 
Infant,  by,  not  void,  but  voidable,  26. 
Lunatic,  by,  or  idiot  voidable  only 
by  heir,  27. 
FIERI  FACIAS,  writ  of.    See  Execu- 

tion;  Judgment. 
FINE, 

Effect  of,  in  cases  of  election,  817. 
upon  equitable  entails,  601,  602. 
Infant  feme   covert,  formerly  con- 
veyed by,  under  Trustee  Act,  835, 
note  {?<)• 
Infant,  idiot,  or  lunatic,  of,  26,  27. 

See  Recovery. 
Nonclaim  with,  a  bar  against  infant, 
c.  q.  t.  of  term,  721. 
secus  in  case  of  fraud,  ib. 
a  bar  against  constructive  trust  in 
favour  of  a  volunteer  without 
notice,  733. 
no  bar  in  case  of  notice,  224. 
FINES, 

Admission  to  copyholds,   for,  272, 

402.     See  Copyholds. 
Lease  of  charity  lands,  upon,  505, 

506  ;  see  510. 
Renewals  on,  386,  et  seq.    See  Re- 

netvable  Leaseholds. 
Under-leases  of,  392. 
FINES  AND  RECOVERIES'  ACT. 
See  Protector. 
Acknowledgment    by   feme  covert, 
under,  25,  632,  634,  note  {n). 
its  effect  as  to   her  reversionary 
interest  in  land,  817,  818,  to  be 
converted,  ib. ;  legacy  charged 
on,  ib. ;    see  note  (ji). 
whether    necessary    for    dealing 
with   wife's   separate  property, 
646. 
Effect  of,  in  election  by  tenant  in 
tail,  822. 
as  to  limitation  to  preserve  con- 
tingent remainders,  411. 
under  settlement  of  husband's 
property  to  heirs  of  body  of 
wife,  148. 
Infant  tenant  in  tail,  conveyance  by, 
in  pursuance  of  Trustee  Act,  835, 
note  (/). 
Vesting  order,  under  Trustee  Act, 
1850,  885,  note  [1). 
FOLLOW.     Where  c.  q.  t.  may,  trust 
estate  itself,  if  wrongfully  convert- 
ed, c.  xxvi.  s.  1,  724.  See  Breach 
of  trusty  (Remedy,  1). 


where  property  substituted  in  place 
of  trust  estate,  c.  sxvi.  s.  2,  753. 
where   conversion   in    pursuance 
of  trust,  754. 
tortious,    755,    et    seq.      See 
825,  Breach  of  trust  (Reme- 
dy,  2). 
FORECLOSURE,  ^qq  Abroad;  Mort- 
gagee. 
FOREIGN.    See   Abroad;   Frauds, 
Stat,  of;  Jurisdiction. 
Funds,  812. 

Law,   whether  trustee  or  executor 
presumed  to  know,  367. 
FORFEITURE.      See  Felon;    Out- 
law ;  Treason. 
Case   of  felony,  outlawry,  or  trea- 
son, 29. 
as   to   chattels  and  goods,  takes 

place  on  conviction,  ib. 
felon,  &c.,  may  sell  goods,  &c., 
before  conviction,  ib. 
how  far  he  may  make  a  settle- 
ment of,  28,  29. 
Equitable  interests  of,  none  at  com- 
mon  law,  in   trusts  of  lands, 
674. 
qu.  under  33  H.  VIII.  c.  20,  s.  2, 

674,  et  seq. 
equities  of  redemption  within  the 

statute,  677. 
trust  for  alien,  677,  how  crown 
prosecutes  its  rights,  ib. 
ofchattels,realor  personal, 677. 
for  felon's  wife,  ib. 
Legal  estate  in  trustee,  of, 

chattels  in  trustee,  subject  to,  at 
common  law,  260. 
secus    now,   260,    286  (but  see 
287),  and  secus  as  to  assets 
in  hand  of  executor,  262. 
freehold  estate  in  trustee,  subject 
to,  at  common  law,  260. 
secus  now,  260,  285,  286,  (but 
see  287). 
Person   taking    trust  estate  under, 
formerly  bound  by  same  equity  as 
forfeitor,  280. 
Tenant  for  life  by,  at  law  from  feoff- 
ment, &c.,  678. 
not  bv  equitable  tenant  for  life,  ib. 
FORGERY, 

Letter  of  attorney,  of,  372. 
Trustee  absconding    on  charge   of, 
removeable,  711. 
FORMALITIES, 

required  for  creation  of  trust,  c.  v. 

p.  56. 
and  see  Averment;  Frauds,  Stat,  of; 
Wills,    Stat,  of;    Iransmutation 
of  Possession. 


INDEX. 


769 


FOUNDER,  I 

Charity,  of,  when  visitatorial  power 
belongs  to  heirs  of,  492. 
when  heir  of,  unknown  or  lunatic, 
visitatorial    power    in    crown, 
495. 
FRAUD.     See  False;  Fine  ;  Suit. 
Bar,   none  from   time   whilst  fraud 
concealed,  734,  note  (6). 
and  see  Stat,  of  Limitation,  s.  26, 

743. 
account  carried  back  to  accruer 

of  title,  756,  note, 
secus,  after  discovery,  734. 
By  agent,  204  ;  devisee  or  heir,  70. 
feme  covert,  774;   grantor,   178; 
infant,  39,  774. 
Charged   by  bill,  defence,  whether 

by  demurrer  or  plea,  735. 
Ground  for,  account  of  mesne  rents 
in  equity,  though  upon  a  legal 
title,  754,  note, 
court's  interference  in  exercise  of 

powers,  543. 
court's  non  interference,  137,  139, 
768;  conf.  178. 
Laches,   effect   of,   where    plaintiff 

alleges  fraud,  742. 
Parol,  may  be  established  by,  74  ; 

and  see  205. 
Vitiates  trust  for  payment  of  debts, 
476. 
FRAUDS,  STATUTE   OF.     C.  v.  s. 
2,  p.  60  ;  and  see  Devisee,  Heir. 
Assignment  of  trusts,    must  be   by 

writing  signed,  &c.,  600. 
Constructive  trusts,  how  far  it  affects, 
228,  et  seq. ;  see  206,  762. 
distinction    in    case   of  will   and 
conveyance,  230. 
Devises  of  lands,   and   bequest   of 
personal  estate,  how  made  accord- 
ing to  statute,  65. 
Interests  within  the  act, 

charitable  uses,  61 ;  chattels,  real, 

61 ;  copyholds,  60. 
Not  chattels  personal,  61;  lands 
in  colonies  planted  before  sta- 
tute   passed,    62  ;    nor   foreign 
lands,  62  ;  nor  trusts  arising  by 
implication  or  operation  of  law, 
204,  228. 
whether  it  binds  the  crown,  62. 
Pleading  the  statute,  as  to,  62  ;  see 

1B7. 
Trust  to  be  proved  by,  not  declared 
in  writing,  statute  satisfied  if 
trust  manifested  by  subsequent 
acknowledgment  of  trustee  ;  e. 
g.  by  answer,  express  declara- 
tion, letter,  memorandum,  reci- 


tal, 63  ;  qu.  whether  by  bill  in 

chancery,  63,  note  (m). 

but  relation  to  subject-matter  and 

nature  of  trust  must  be  clear,  64. 

writing   must   be  signed,  64 ;  by 

whom,  65. 
may  refer  to  unsigned  paper,  64. 
Trust  estate,  how  far  assets  under 
section  10  of  Act,  684. 
when  to  be  taken  in  execution  at 
law  under  same  section,  664. 
FRAUDULENT, 

Appointment  of  trustee,  580. 
Conveyance,  within  Bankruptcy  Act, 
479, 480  ;  within  Insolvent  Deb- 
tor's Act,  475. 
of  estate  abroad  relieved  against,  48. 
Corporators,  fraudulent  alienation  or 

misrepresentation  by,  847. 
Dealing  with  executor.     See  Execu- 
tor, Powers,  455,  et  seq. 
Exercise   of  discretion  by  trustee. 

See  409,  415,  543. 
Purchase  by  trustee  of  trust  estate, 
repairs  only  allowed,  466. 
FREE, 

Grammar  school,  "  school,  "  (see  3 
&4Vict.  c.  77),  499,  500. 
FREEBENCH, 

attaches  on  legal  estate  in  trustee, 
260. 
not  on  equitable  estate  in  copy- 
holds, 621. 
FREEHOLD.     See  Disclaimer. 
whether  estate  for  life  may  be  devis- 
ed to   trustee  notwithstanding,  1 
Vict,  c.  26,  259. 
"FUNDS,"  342. 

in  court,  assignment  of,  613,  614. 

GAME  ACT, 

qualification  under  extended  to  c.  q. 
t.  of  lands,  593. 
GAMEKEEPER, 

must  not  be  appointed  for  pleasure 
of  trustees,  318. 
GAVELKIND  LANDS, 

Descent  of  money  arising  from  sale 
of,  681. 
trust  in,  680. 
Settled,  how,  under  articles,  157. 
GENERAL  ORDERS,  as  to  distrin- 
gas, 1  to  5  of  17  Nov.  1841,  861, 
862. 
as  to  interest  on  simple  contract 
debts,  from  decree  46th,  of  Aug. 
1841,  490,  note  [g). 
as  to  parties  to  suits,  30th  and  32d 
of  26th  Aug.  1841,  852,  et  seq. 
as  to  service  of  petition  for  Stop 
Order,  614,  note  {I). 


770 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


I 


GENERAL  ORDERS,  continued. 
as  to  Trustee  Relief  Act,  379,  et 
seq. 
GOVERNMENT, 
securities,  341,  342,  353.  See  Invest- 
ment. 
GRANDCHILD, 

advancement  for,  presumed,  216. 
"GRANT."     See  Covenant. 

whether  inserted  in  conveyance  by 
trustees,  424  ;  see  596,  note  (r). 
GRANTEE, 

g^uilty  of  mala  fides,  178. 
GREEK  BONDS,  342. 
GUARDIAN, 

Advantage,  cannot  gain   by   abuse 

of  his  office,  321. 
Infant  cannot  be,  36. 
Office  survives   as  to  testamentary 
guardians,  300. 
secus,  if  joint  guardians  appointed 
by  court,  ib.  note  [v). 

HARDSHIP, 

court  will  not  enforce  against  trus- 
tees contract  which  involves,  424. 
HEIR.     See  141,  Devise ;  Resulting 
trust. 
c.  q.  t.  attainted,  whether  his  heir  may 

sue  trustee,  323. 
Common  law  heir,  when  entitled  to 
proceeds    of   sale    of   gavelkind 
lands,  G81 ;  customary  when   en- 
titled to  trust  estate,  680. 
Engagement  by,  to  make  provision, 
&c.,  if  estate  allowed  to  descend, 
enforced,  70. 
Failure  of    See  EscJieat,  Failure  of 

c.  q.  t.,  Trustee  Acts. 
Favoured,  whether  more  than  execu- 
tor, 188,  805;  conf.  181. 
"  Heirs    female"    in    articles,    149. 

"  Heir  Male"  in  will,  154. 
Money  to  be  laid  out  in  land,  where 
heir  entitled  to,  797,  et  seq.  See 
Conversion. 
under  bequest  to  be  settled  on 
testator's  heir,  805. 
"Nemo  est  hjeres  viventis,"  407. 
Resulting  trust.     See  Trustee,  inf. 
(a)  heir  takes, 

upon  devise  on  trust  where  trust 

not  defined  by  will,  G8,  181. 
unattested  documents,  whether 
admissible  to  prove  trust,  ib. 
whether  case  altered  by  parol 
information  of  trust  by  tes- 
tator to  trustee,  75,  et  seq. ; 
181,  et  seq. 
upon  devise  to  one  without  re- 
ference to  trust  where  engage- 


ment to  execute  unlawful 
trust,  71  ;  and  even  though 
such  engagement  does  not 
relate  to  definite  part  of  es- 
tate, 73. 
defendant    must    discover   the 

secret  trust,  72,  73. 
case  of  engagement  to  execute 
trust,  but  no  trust  declared,  74. 
(6)  heir  does  not  take, 

upon  devise  to  one  without  re- 
ference to  trust,  where  no  com- 
munication to  devisee  in  tes- 
tator's  life,   though   testator 
leave  unattested  declaration 
of  trust,  68 ;  and  see  p.  72. 
or  devisee  means  to  execute  un- 
lawful trust,  73. 
heir  not  excluded  from  by  mere 
conjecture,  181 ;  whether  by 
a  legacy,  181. 
in  money  or  devise  for  conver- 
sion, where  heir  takes,  182, 
etseq. ;  but  see  194, 197  ;  and 
see  liesuUing  trust. 
whether  resulting   interest  de- 
volves as  realty  or  personalty, 
182. 
Settlor,  heir  of,  when  bound  by  trust, 

693,  694. 
Specialty  debts,  how  heir  is  liable 

to,  239. 
Trustee,  heir  of,  is  bound  by  trust, 
279  ;  whether  he  can  disclaim, 
232. 
twenty   years'  possession   by,  no 
bar  to  heir  entitled  to  resulting 
surplus    rents    under    express 
trust,  745. 
Use,  the  heir  is  bound  by,  3. 
Volunteer,  when  the  heir  is,  under 
limitation  in  marriage  settlement 
to  heirs  of  husband,  406. 
HEIRLOOMS, 

Bequest  of,  to  same  uses  as  free- 
holds   in   strict   settlement,    how 
construed,  158,  et  seq.     See  Exe- 
cutory trusts. 
c.  q.  t.  his  rights  in,  594. 
HEIRS    OF    THE    BODY.      Equi- 
table entail,  may  be  created  with- 
out these  words,  141. 
Construction  of,  in  marriage  articles 
as  to  chattels,  149. 
as  to  freeholds  where  construed, 

first  and  other  sons,  147,  148. 

in  wills  whei'e  construed  first  and 

other  sons,  153,  et  seq.;  and  see 

142,  143,  and  Executory  tnists. 

Include    daughters,    149,    156,    not 

synonymous  with  "  issue,"  155. 


INDEX. 


771 


HEIRS  OF  THE  BODY,  continued. 
Purchaser     with     notice,     whether 
bound  by  these  words,  Y27. 
HERIOT, 

when  payable  as  to  copyholds,  272, 
conf.  402. 
HERITABLE  bond,  53. 
"  HONORARY  TRUSTEES,"  408. 
"HOPING," 

may  raise  a  trust,  168. 
HOUSEHOLD  GOODS,  how  c.  q.  t. 

of  may  use,  594. 
HUSBAND.     See  Feme  Covert. 
Executrix,  husband  of,  may  admin- 
ister assets  during  coverture,  2GL 
Liable  for  wife's  breach  of  trust,  34. 
Trastee   of   wife's    separate   estate, 
construed  to  be,  44,  121,  125, 
note  (x),  694,  728. 
husband   appointed  with  another 
upon  trust,  (inter  al.)  for  wife, 
not  a  trustee  for  her  separate 
use,  123. 
Wife's  property,  how  far  he  may  dis- 
pose of,  chattels  personal,  627  ; 
chattels    real,    (equitable),   26, 
629,  et  seq. ;  and  see  9, 12,  631, 
(legal),  6'29. 
choses  in  action,  26,  627,  and  see 
369  ;  (and  as  to  her  life  estates, 
see  370). 
freeholds   (equitable   and   legal), 
631,  632. 
Wife's  separate  estate,  what  arrears 
of   can  be   claimed  from  hus- 
band, 642,  as  to  pin-money,  see 
644. 
if  undisposed  of,  husband  surviv- 
ing, entitled  to,  642. 
suit  as  to,  husband  how  made  party 
and  his  costs,  858  ;  see  348. 
HUSBANDRY  LEASES.  See  Leases. 

IDIOT.     See  Lunatic. 
IGNORANCE, 

c.  q.  t.  of,  as  to  his  rights, 

Acquiescence,  defeated  by  it,  778, 

and  so  confirmation,  472,  778. 

Concurrence  in    breach  of    trust 

prevented  by  it,  774. 
Laches  excused  by  it,  471. 
Law,  ignorance  of  the,  472,  778. 
Presumption  of  waiver,  how  far 

rebutted  by  it,  737. 
Release  defeated  by  it,  224,  778._ 
Statutory  bar,  not  prevented  by  it 
from  running  in  equity,  733. 
Trustee  of,  as  to  his  true  character, 
751,  conf.  790. 
ILLEGAL      Trust.      See     Ualaioful 
trust. 


ILLEGITIMATE  CHILD, 

advancement  for  presumed,  216. 
future,  trust  for  not  good,  131. 
IMAGINARY  VALUES, 

trustee  not  charged  with,  766. 
IMBECILITY.     See  Lunatic. 
IMPERATIVE  powers.     See  Failure 

of  Trustee,  Poioers. 
IMPERTINENCE, 

Statement  of  trustee's  misconduct  is 
not,  711. 
IMPLIED.     See  Notice. 
Devise,  250. 

Powers,    whether     charge    implies 

power  of  sale,  251 ;  and  see  257, 

258. 

Trusts,  defined,  140,  note  (1);  and 

see  c.  VII.  2,  p.  167. 

agreement  to  settle   under,  173. 

See  Settlement. 
Charge,  under,  173.    See  Charge. 
Contract  for  sale,  uiader,  174,  l75. 

See  Purchaser. 
Words   precatory   from,    167,  no 
trust  created, 
where  uncertainty,  168,  et  seq. 
doctrine  of,  discouraged,  173. 
not  a  question  of  mere  gram- 
matical import,  171. 
trustee  of,  not  bound  so  strictly 
as  by  common  trust,  172. 
Words,  "  subject  thereto,"  implied, 
191.     See  Resulting  trust. 
IMPROVEMENTS, 

Allowance  for,  on  setting  aside  cha- 
rity lease,  511. 
purchase  by  trustee,  466,  468. 
not  allowed  in  case  of  fraud,  466. 
tortious  sale  by  trustee,  764. 
Lasting,  lien  of  trustee  for,  222. 
On  lunatic's  estate  from  his  person- 
alty, 827. 
e.  g.  for  draining,  engine  at  mine, 
inclosure,  ib.,  conf.  830. 
Ornamental  by  trustee,  expense  of 

not  allowed,  513. 
Tenant  for  life,  whether  directed  at 
his  instance,  514. 
IMPROVING  LEASES, 

of  charity  lands,  504. 
INACTIVITY, 

ofone  co-trustee,  574,  whether  ground 
for  appointing  receiver,  870. 
INCAPACITY  of  trustee,  ground  for 
appointing  new  trustee,  710,  see  693; 
receiver,  870. 
INCONVENIENCE, 

of  granting  relief  a  bar  to  suits,  739, 

et  seq. 
how  far  applicable  as  to  charities  in 
suits  for  account,  787,  et  seq. 


772 


LEWIN    ON    THE    LAAV    OF    TRUSTS,    ETC. 


INCUMBRANCE, 

trustee  cannot  buy  up  for  himself, 
318. 
INDEMNITY.     See  Attonieij  (power 
of).  .    . 

Advice   of   charity   commissioners, 
persons  acting  under  indemnified, 
785  ;  See  Payment,  inf. 
Bond   of,   on  appointment   of   new 
trustees,  580,  581. 
on  distribution  of  trust  fund,  367  ; 
and  see  721. 
c.  q.  t.  bringing  action  in  name  of 

trustee  must  give,  591 ;  see  719. 
Court  trustee  acting  under  sanction 
of,  obtains  without  release,  375; 
and  see  368,  765. 
as  to  future  instalments  when  one 
payment   made    under   court's 
direction,  376. 
Leaseholds  when  trustees  and  exe- 
cutors can  require  in  respect  of, 
426;  and  see  223. 
Legal  liability,  trustee  who  has   in- 
curred at  request  of  c.  q.  t,  may 
claim    indemnity,   562 ;    but  see 
563,  564. 
Payment  by  trustee,  &c.,  of  charity 
funds  to  official  trustees,  382. 
into  court  by,  under  Trustee  Re- 
lief Act,  377,  note  [x). 
INDIA.     See  Bengal,  East  Indies. 
INFANT.     See  Advancement,  Main- 
tenance, Trustee  Acts. 
Acquiesce  cannot,  in  breach  of  trust, 

777  ;  purchase  by  trustee,  471. 
Administration,  durante  miaoritate, 

834,  note  (I). 
Assurances  by,  he  may  avoid,  37,  38, 

inf. 
Attorney,  cannot  be  in  suit,  might 
be  to  deliver  seisin,  36 ;  see  Power, 
inf. 
Bailiff,  cannot  be,  36. 
Breach  of  trust,  cannot  commit,  39, 
373  ;  or  concur  in,  774. 
unless  guilty  of  fraud,  39,  775. 
cannot  acquiesce  in,  confirm,  or 

release,  777. 
protected  after  attaining  21,  until 
he  has  full   information,  777  ; 
and  see  Eemed;/,  inf. 
Capacity,  has  no  legal,  35. 
Confirm  cannot,  breach  of  trust,  777 ; 

purchase  by  trustee,  472. 
Conversion  of  his  property,  not  per- 
mitted, 829. 
case   distinguished  from   that  of 
lunatic,  and  why,  829. 
but  since  late  Wills  Act,  see  831. 
mortgage,  &c.,  paid  off  out  of  his 


money,   considered  personalty, 
830. 
timber    cut,  preeeeds  with   accu- 
mulation remain  realty,  829. 
except  perhaps  where  he  is  te- 
nant in  tail,  and  why,  830. 
but   necessary   outlay  for    realty 
thrown  on  personalty,  830. 
e.  g.  keeping  up  house,  option 
to  purchase  at  given  price, 
repairs,  ib. 
seisin    changed    from    ex   parte 
materna  to  ex  parte  paternfi,  on 
renewal  of  lease,  831. 
Debts,  confirmed  by,  after  attaining 
majority,  776. 
contracted  by,  for  necessaries,  485. 
Deed,  his  delivery  of,  its  effect. 
Disability   of,    how    remedied,    36. 
See  Trustee  Act ;  and  as  to  settle- 
ment of  infant's  estate  on  mar- 
riage, see  18&  19  Vict.  c.  43. 
Discretion,  he  has  not  any  legal,  36. 
Elect,  cannot,  816. 
Executor,  when  he  might  formerly 
have  acted  as,  36 ;  have  appointed, 
25. 
Feoffment  by,  not  void,  but  voidable, 
27. 
by  custom  of  Kent,  infant  of  15 
years  may  make  for  value,  and 
semble  without,  27. 
Fine  of.     See  Fine,  Recovery,  inf. 
Fraud,  may  not  practise,  39 ;   and 

see  373,  775. 
Gift  to,  presumption  that  he  takes 

beneficially,  39. 
Guardian  to  a  minor,  he  cannot  be, 

36. 
Laches,  of  his  trustee,  in  not  prose- 
cuting legal  right  whether  barred 
by,  720,  et  seq.;  see  744. 
Liable,  not  personally,  to  trustee  for 

expenses,  563,  note  {x). 
Limitation  of  suit.     See  Limitation, 
Stat,  of,  Mesne  Rents  and  Profits, 
inf ,  and  754,  note. 
Mesne  rents  and  profits,  may  file  bill 
for  account  of,  on  legal  title, 
753,  755,  notes, 
account    barred  •  unless   brought 
within  six  years  after  majo- 
rity, 755,  note, 
carried  back  to  accruer  of  title, 
754,  note, 
but  where  defendant  ignorant 
of  true  character  as  trustee 
only  to  filing  a  bill,  751. 
Ministerial  acts,  he  may  discharge, 
36  ;  e.  g.  as  lord  of  manor  he  may 
give  effect  to  custom. 


INDEX. 


773 


INFANT,  contimicd. 

Payment  to,  by  trustee,  372. 
Power  of  attorney  by,  void,  37. 
collateral    cannot   execute  if  re- 
quiring discretion,  36. 
Receiver,  he  cannot  be,  3(5. 
Recovery  of,  formerly  reversible  only 

during  nonage,  26. 
Release,  he  cannot,  777. 
Relinquishment,  by  trustee  of  office, 

he  cannot  consent  to,  565. 

Steward  of  manor,  he  cannot  be,  36. 

but  acts  by  him  in  this  character 

cannot  be  avoided,  36,  note  (c). 

Tenant  in  tail.     See  Recovery,  Fines 

and  Recoveries  Act. 
Trust,  how  far  he  can  create,  26,  27. 
created  by  him  would  not  be  en- 
forced to  his  prejudice,  semble, 
27.  _ 
Trustee,  infant  ought  not  to  be  ap- 
pointed, 35  ;  substitution  of  new 
trustee  for,  895,  note  {m). 
how  infant  conveyed  under  Trus- 
tee Act,  835,  note  (ii). 
for  infant,  how  he  may  purchase 
trust  property,  465. 
Will,   cannot   make,    27 ;    formerly 
might  of  personalty  if  14  years  of 
age,  ib. 
INFORMATION.     See  Duties. 
c.  q.  t.  may  require  as  to  state  of 

trust,  599  ;  see  427. 
Ordinary    remedy   for   breaches   of 
trust  as  to  charities,  779. 
where  an  information  proper,  and 

where  a  bill,  ib.,  note  (6). 
advowson  where  vested  in  trustees 
for    parishioners,    information 
improper,  107. 
corporation  against,  for  removal 
of    governors    dismissed    with 
costs,  493. 
but  where  mal-administration   of 
property  court  interposes,  ib. ; 
and  see  31. 
INHABITANTS, 

Election  of  clerk  by.     See  Parish- 
ioners, 107,  108. 
Of  a  place,  trustees  required  to  be, 
711. 
INJUNCTION, 

Breach   of  trust,  c.  q.  t.  may  have 
against,  723. 
where  co-trustee  should  apply  for, 
317. 
Improper  sale,  whether  c.  q.  t.  may 
have  against,  422. 
whether  mortgagor,  423,  note  {lo). 
Lands  abroad,  from  taking  posses- 
sion of,  48. 


Payment  into  court,  notwithstanding 

injunction,  869. 
Timber  as  to,  753,  note. 
Waste  where  tenant  for  life  threatens, 
trustee  to  preserve  should  apply 
for  injunction,  408. 
INQUIRIES, 

Assignee  of  equitable  interest  should 

make,  of  trustee,  605. 
c.  q.  t.  by,  trustee  must  answer,  427 ; 

and  see  599. 
Charity  commissioners  by,  784;  see 
779   783. 
INQUISITION,  132,  677.     See  Alien. 
INSOLVENCY.      See    Bankruptcij, 
Insolvent. 
Debts,  trust  for,  how  affected  by  in- 
solvency, 475. 
Equity  to  settlement  of  feme  covert 

as  against  assignees,  369. 
Limitation  over,  on  or  until,  135,  et 
seq. 
person   cannot  so  limit  over  his 

own  property,  136. 
except  to  extent   of  portion   re- 
ceived with  wife  on  marriage, 

.  ^^• 
Maintenance,  trust  for,  at  discretion 

of  trustees  how  far  assignees  take 
under,  133,  134.;  and  see  597. 
Proof    undei-.        See    Bankruptcy 

(Proof). 
Trust  estates,  where  they  pass  to  as- 
signees on  trustee's  insolvency,278. 
See  Banhmptcy  (Trust  Estate). 
INSOLVENT, 

C.  q.  t.  tenant  for  life,  goods  left  in 

his  possession  not  forfeited,  594. 
Co-trustee,  whether  necessary  party 
to  suit,  848  ;  whether  representa- 
tives of  deceased  are  solvent  co- 
trustees, 847. 
Judgment  against  future  property, 

effect  of,  29. 
Property  of,  up  to   final  discharge 

vests  in  assignees,  29. 
Trust,  how  far  he  can  create,  29. 
Trustee,  insolvent  is  not  absolutely 
disqualified  from  being,  40  ;  but 
see  711,  and  note  [g). 
his  insolvency  a  ground  for  ap- 
pointing receiver,  870. 
INSPECTION, 

Accounts  of  c.  q.  t.'s  right  to,  599. 
Vouchers  of,  428. 
INSTRUMENTAL  TRUSTS,  21. 
INSURANCE, 

Company,  shares  in,  given  in  succes- 
sion should  be  converted,  812. 
Executor  held  not  liable  for  omitting, 
against  fire,  332;  see  Trustee,  inf. 


774 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


INSURANCE,  continued. 

Fines,  for  renewal,  payable  out  of 

rents,  as  to  insurance,  391. 
Mortgagee  not  allowed  for,  in  absence 

of  stipulation,  516. 
Statute,  14  Geo.  III.  c.  48,  does  not 
prohibit  on  life  of  A.  in  name  of 
B.,  when  both  names  appear  on 
policy,  136. 
Trustee,  whether  he  should  insure 
against  fire,  516. 
when  liable  for  omitting  to  main- 
tain policy,  764. 
his  lien    for   premiums,  &c.,  ad- 
vanced for,  ib. 
INTENTION, 

will,  if  possible,  be  carried  into  effect 
in  trusts,  100, 103;  and  see  Volun- 
tary Assurance. 
will  not  control  the  operation  of  the 
Statute  of  Uses,  246. 
INTEREST, 

c.  XIII.  s.  4,  p.  358.     See  Investment. 
c.  q.  t.  receiving  on  improper  loan, 
where    estopped    from    charging 
trustees,  776  ;  conf.  769. 
Charged  against  assignees, 

executor,  receiver,  trustee,  &c.,  for 
moneys  improperly  retained  by 
them,  358,  359  ;  see  as  to  retain- 
er of  charity  funds,  502. 
no  excuse  that   money  was  not 

used,  359. 
but  delay  may  be  explained  by 

luistake,  ib. ;  and  conf.  790. 
executors,  from  what  period  charg- 
ed, 364. 
not  on  money  that  never  came 
to  hand,  365  ;   and  see  329, 
Hate,  Trade,  inf. 
Compound,  charged  where  accumu- 
lation   directed,    364 ;    and    see 
Trade,  inf. 
Costs,  interest    on,  not  allowed  to 

trustee,  558. 
Debts  on,  what  allowed  under  trusts 

for  creditors,  489 ;  see  Debts. 
Fines   for    renewals,   what   interest 

charged  in  contribution  for,  397. 
Mesne  rents  and  profits,  not  charged 
ou  account  of,  752. 
nor  where  purchase  by  trustee  set 
aside,  466. 
Proof  for,  by  c.  q.  t.  on  bankruptcy 

of  trustee  guilty  of  breach,  771. 
Rate  of,  £4  per  cent,  charged  usual- 
Iv  where  simple  retainer,  361, 
362. 
£5  per  cent,  where  direct  breach 
&c.,  362  ;  and  see  Trade,  inf. 
Trade,  money  employed  in,  by  trus- 


tee ;  c.  q.  t.  has  option  of  £5  per 

cent,  or  actual  profits,  319,  361. 

whether  with  rests,  362,  363  ;  and 

see  Trade. 
money  lodged  at  bankers'  in  trus- 
tee's name   considered  so  em- 
ployed, 361. 
INTESTACY, 

C.  q.  t.  of,  as  to  personal  estate  with- 
out next  of  kin,  executor  enti- 
tled, 324. 
as  to  fee,  without  heirs,  whether 
trustee  entitled,  321,  et  seq. 
Mortgagor  of,  in  fee,  without  heirs, 
mortgagee  entitled,  subject  to  mort- 
gagor's debts,  322,  679. 
Of  purchaser  of  fee,  without  heirs 
after  purchase    money  paid,   but 
before  conveyance,  vendor  keeps 
money  and  estate,  322. 
Trustee,  when  he  should  avoid,  as  to 
trust  estate,  265,  et  seq. 
INTESTATE, 

Trustee  not  within  Lord  St.  Leonards' 
Trustee  Act,  s.  10,  838,  note  [d). 
INTIMIDATION.     See  Terror. 
INTRUDER, 

not  bound  by  a  use,  3. 
INTRUSION, 

may  be  of  a  trust,  621. 
INVENTORY, 

when  desirable,  244. 
trustee  neglecting,  may  be  deprived 
of  costs,  ib. 
INVESTMENT.     See  Receipts. 
Construction  of  particular    expres- 
sions, as 
"  to  call  in  securities  not  approved 
of  by  executors,"  329;  such  securi- 
ties as  trustees  may  approve,  345; 
"  consent  of  tenant  for  life,"  "  of 
wife"  to  loan  to  husband,  340  ;  see 

339  ;  "  convert  with  all  convenient 
speed,"  329  ;  "  to  lay  out  at  trus- 
tee's discretion,"  338 ;  "  to  employ" 

340  ;  "  to  lay  out  on  such  good  se- 
curity as  trustee  can  procure,  &c.," 
338  ;  government  or  good  securi- 
ties, 353  ;  and  see  341,  342  ;  " to 
place  out  at  interest,  or  other  way 
of  improvement,"  340  ;  "  to  call  in 
and  lay  out  at  greater  interest," 
341 ;  trustees  "  required,"  339, 349. 

Court  of  Chaiicenj, 

Bank  annuities,  sometimes  refuses 
to  sell  out  for  investment  on  mort- 
gage, even  where  express  power, 
346. 

Mortgage,  does  not  call  in,  without 
previous  inquiry  whether  advisa- 
ble, 355. 


INDEX. 


75 


INVESTMENT,  continued. 

Personal  security,  will  not  invest  on, 
even  where  express  power,  338 ; 
see  343. 
Selects  for  investment  £3  per  cent, 
consols,  351  ;  sometimes  (on  ac- 
count of  time  of  payment  of  divi- 
dends) allows  £3  per  cent.  Red., 
354. 
Duties,  t&c,  of  trustees  as  to  invest- 
ment.    See  Conversion,  India. 
Bank  private,  trustees  may  invest  for 
temporary  purposes   to  trust  ac- 
count, 330,    332 ;  but  not  other- 
wise, 336;  and  see  357,  361. 
Call  in,  trustee  should,  personal  pro- 
perty outstanding,  327,  328;  see 
329  ;  on  hazardous  security,  .'i43. 
Consols  or  bank    annuities,  should 
not  sell  out  to  invest  in  irregular 
funds,  353. 
Control,  must  not  put  money  out  of 
his  own,  334  ;  must  not  put  mo- 
ney under  control  of  co-trustee  or 
co-executor,  316,  357. 
Inquiry,  should  make  due  as  to  va- 
lue of  security,  345,  349,  350. 
as  to  reversion,  350. 
as  to  title  of  borrower,  345  ;  and 
see  349. 
Lend,  must  not,  to  co-trustee,  338, 

345  ;  conf.  329. 
Mix,  must  not,  trust  property  with 
his  own,  332,  337;    see  759;  or 
with  sti'anger's,  350. 
Part  with  trust  money,  should  not, 
except   on   delivery    of    security, 
351. 
Power  of  investment,  must  construe 
strictly,  340  ;  see  346. 
where  no  express  power,  trustee 
should  invest  in  £3  per  cents., 
and  execute  declaration  of  trust, 
351. 
especially  where  successive  estates, 

352;  see  812. 
except  where  other  premises  spe- 
cifically bequeathed,  354,  809. 
Productive,  should  make  trust  fund, 

336,  337  ;  see  357,  358. 
Receipts,  whether  power  to  give  im- 
plied by  trust  for  investment,  523. 
See  Receipts. 
Solicitor,  trustees  should  not,  when 
lending,  employ  borrower's  solici- 
tor, 358. 
Tenant  for  life,  trustees  must  not 
favor  at  expense  of  remainderman, 
339,  344,  352  ;  and  see  343,  346, 
348,  415,  421,  808. 
Trade,  must  not  invest  in,  or  specu- 


lation, 319,  340;  see  361,  et  seq., 
760. 
Varying  securities,  power  of  trustees 
as  to,  523  ;  see  Receipts,  sup. 
Liabilities  incurred  by  imptroper  in- 
vestment or  non-investment. 
Capital,  as  to,  where  money  impro- 
perly retained. 
{a)  where  no  direction  to  invest, 

353. 
(6)  where  express  direction  to  in- 
vest in  funds,  and  neglect  so  to 
do,  355  ;  and  see  357,  764. 
(c)  where  direction  to  invest  in 
funds    or    real    security,    355, 
764. 
when  stock  improperly  sold,  356, 
772  ;  and  see    Conversion  [im- 
plied and  tortious). 
Interest,  as  to,  c.  xiii.  s.  4,  p.  358  ; 

see  Interest. 
Securities,  particular  kinds,  whether 
authorized. 

[a)  Generally, 

Annuity  with  policy,  341 ;  bank 
or  government  annuities,  351  ; 
bank,  private,  336  ;  bank  stock, 

341,  352  ;  copyholds  for  lives, 
350 ;  East  India  Company,  se- 
curities of,  355 ;  exchequer  bills, 

342,  and  note  (t) ;  foreign  bonds, 
&c.,  329,  812;  funds,  342;  go- 
vernment securities,  341,  342, 
353  ;  Greek  bonds,  342  ;  judg- 
ment, 350  ;  leaseholds  for  lives, 
349  ;  for  years,  ib. ;  long  annui- 
ties, 340,  350,  352,  810  ;  Mexi- 
can bonds,  329  ;  mortgage,  see 
inf. ;  real  securities  (as  to  se- 
cond or  joint,  350)  ;  navy  £5 
per  cents.,  353  ;  personal  secu- 
rity, inf. ;  public  securities,  352  ; 
purchase,  349  ;  railway  mort- 
gages, 345  ;  reversion,  350  : 
shares  of  canal,  insurance,  rail- 
way, &c.,  companies,  812;  South 
Sea  Stock,  341  ;  stock  of  private 
company,  ib. ;  £3  per  cent,  con- 
sols, 351  ;  £3  per  cent,  reduced, 
354;  £31-  per  cent.,  340;  tolls 
and  road  bonds,  346  ;  trade, 
340  ;  and  see  Trade. 

[b)  Personal, 

executor  should  call  in  investments 

on,  328,  329. 
trustee  should  not  invest  on  ;  and 

see  instances,  337,  338. 
unless   where   express    authority, 

338  ;    what  equivalent  to  such 

authority,  see  338,  341.      See 

Court,  Trade,  sup. 


776 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


INVESTMENT,  continued. 

whether  on  bank  stock,  &c.,  341, 
note  {p) ;  exchequer  bills,  342. 
(c)  Real, 

1.  where  not  expressly  authorized, 

quaere,  whether  trustees  may 
invest  upon,  342,  343 ;  and 
see  523. 
not  where  express  direction  to 
invest  in  the  funds,  344;  and 
see  Court,  supra. 

2.  where  expressly  authorized, 
trustees    may    retain    existing 

mortgages,  if  sufficient,  346  ; 
and  see  329. 
trustees  may  sell  out  stock,  and 
invest  on  mortgage,  344,  34G. 
should  not  do  so  for  mere  ac- 
commodation  as   to  secure 
equal  amount  of  stock  and 
interim  dividends,  344. 
secus,  where  security  for  equal 
amount   and   interim  inter- 
est, ib. 

3.  what  property  it  authorizes, 
not  loans  on  railway  mortgages, 

345. 

nor  on  leaseholds  for  lives, -n-ith 
policy,  349 ;  (secus  as  to  lease- 
holds renewable  for  ever,  ib.) 

nor  personal  security  with  judg- 
ment entered  up,  350. 

qu.  as  to  leaseholds  for  years, 
349 ;  reversion,  equity  of  re- 
demption, joint  mortgage, 
350. 

when  it  authorizes  road  bonds 
and  mortgages  of  tolls,  346. 

when  mortgage  of  real  security 
in  Ireland  under  4  &  5  W.  4, 
c.  29,  347. 

purchase,  349  ;  and  see  421. 

4.  generally, 

trust,  how  kept  out  of  sight  on 
mortgages  and  transfers,  346, 
347. 
IRREVOCABLE  trusts,  481,  et  seq. 

See  101,  Debts. 
IRELAND.     See  Jurisdiction. 

lands  in,  within  Lord  St.  Leonards' 

Trustee  Act,  835,  note  {s). 
as  to  Trustee  Act,  1850 ;  see  s.  55, 

901,  note  (c). 
partition  of  lands  in,  not  decreed 

here,  50. 
semble,  unaffected  by  Thellusson  Act, 
120. 
"  ISSUE."     See  Executory  trusts. 
construed  in  articles,  where  to  mean 

_  first  and  other  sons,  147. 
distinguished    from    heirs    of    the 


body,  155. 
Includes  daughters  as  well  as  sons, 

149,  156. 
Purchase,  a  word  of,  not  of  limitation, 

156. 

JOINT, 

Account,  payment  to,  330 ;  money 

belonging  on,  347. 
Contract,  effect  of  disclaimer  as  to 

237. 
Co-trustees,  their  joint  and  several 
liability  for  breach  of  trust,  767, 
772. 
exercise  joint  office,  298.    See  Co- 
executor,  Co-trustee. 
JOINT    TENANT.    See  Copyholds, 
(Fines). 
Devise  to  two  as  joint  tenants,  where 

one  an  alien,  39  ;  and  comp.  73. 
Forfeiture   by   one  joint  tenant,  of 

chattels,  260. 
Renewal  of  lease  by,  218. 
JOINT  TENANCY, 

Construed    in   articles,   tenancy   in 
common,  152. 
secus  in  executory  trusts  in  wills, 
163. 
except  where  testator  provides 
for  children  or  puts  himself 
in  loco  parentis,  164. 
Implied,  in  equity,  where  purchase 
by  several  contributes  equally, 
201. 
secus  where  contribution  unequal, 

202. 
not  implied  in  advance  on  mort- 
gage,  201,   or   in   partnership, 
202. 
whether  implied  at  law  by  grant  to 
two  and  survivor  and  heirs  of 
survivor,    251;    whether   on    a 
devise,  252. 
Minors  between,  whether  it  can  be 
severed,  152. 
JOINTURE, 

power  to  charge  not  authorized  in 
executory  trusts  by  "  usual  pow- 
ers," 165. 
JUDGMENT.     See  Bond,  Decree. 
Charging  order  of  stock,  shares,  t&c, 
underl&2Vict.c.  110,  s.  14, 
670. 
3  &  4  Viet.  c.  82,  s.  1,  670, 
note  (Z). 
by  whom  and  when  made,   670, 

671. 
its  effect,  671. 
Effect  of,  in  equity. 

as  to  trusts  by  fi.  fa.,  648,  662. 
by  levari  facias,  649. 


INDEX. 


777 


JUDGMENT,  contiimed. 

by  elegit,  G49,  et  seq. 

(a)  cases  in  which  judgment  cre- 

ditor has  remedy  in  equity, 
after  death  of  conusor,  663. 
for  redemption  of  mortgage,  6  jO. 
for  removing  legal  impediment, 

650,  658. 

against  equitable  interest,  650, 

651,  652,  658,  note  {v)  ; 
whether  as  against  assignee 
of  owner  of  equitable  inter- 
est, 653. 

money  to  be  laid  out  in  land, 
796. 
whether  against  laud  subject  to 
ti'ust  for  conversion,  653. 
vendor's  interest  after  contract 
for  sale,  654. 
surplus  proceeds  under  trust 
for  sale,  or  power  of  sale  in 
mortgage,  656;  see  (lo't. 
under  1  &  2  Vict.  c.  110,  656, 
(Hod. 
against  mortgagee,  657,  note 

(0- 

[b)  how  equity  facilitates  by  sale, 
658  ;  see  notes  {v)  and  {to),  663, 
664. 

{(■)  how  much  of  estate  taken  in 
execution, 
formerly  moiety  of  trust,  658, 
659;  see  note  {t/). 
entirety  of  equity  of  redemp- 
tion, 660. 
trust  by  way  of  mortgage,  c[u., 
661. 
now  entirety  under  1  &  2  Vict, 
c.  110,  s.  11,  666. 
(c?)  when  elegit,  &c.,  must  be  sued 
out,  662  ;  and  see  note  (<). 
Effect  of,  at  law, 

at  common  law,  646 ;  under  Statute 

of  Westminster,  647. 
execution  at  law  of  trust  estate, 
under  Statute  of  Frauds,  664 ; 
under  1  &  2  Vict.  c.  110,  s.  11, 
666,669. 
Insolvent,  entered  up  against,  29. 
Late  statutes,  relating  to, 

1  &  2  Vict.  c.  110,  666. 

2  &  3  Vict.  c.  11,  668. 

3  &  4  Vict.  c.  82,  669, 670,  note  {I). 
18  &   19   Vict.  c.  15,  669;    see 

657,  note  {t). 
Register   county,   priority   of  judg- 
ments as  to  lands  in,  672. 
Registration  and  re-registration  of, 
668,  and  note  (c). 
old  law  applicable,  as  to  purcha- 
sers without  notice  of  registered 
May,  1858.— 50 


judgment,  668. 
purchaser,  &c.,  not  bound  by  un- 
registered judgment,  669. 
Searches  for,  668. 

Tacking,  660  ;  see  note  (5),  and  662. 
Trustee's  estate,  judgments  bind,  279. 
but  c.  q.  t.  will  be  protected,  ib. 
JUDGMENT  CREDITOR, 

Postponed  to  prior  equitable  mort- 
gagee, 280,  and  note  (i/). 
Purchaser  for  value,  judgment  cre- 
ditor is  not,  ib. 
Taking  trustee's  legal  estate  in  exe- 
cution bound  by  trust,  261,  280. 
JURISDICTION.   See  Abroad,  Ame- 
rica, Bemerara,  Ireland,  West  In- 
dies, Scotland,  Sicily,  Trustee  Acts. 
equity  can  enforce  trust  of  personal 
property  out  of,  if  parties  with- 
in, 47. 
equities  of  lands  out  of,  if  parties 
\vithin,   and  if  no  obstacle  to 
execution  of  decree,  47  ;  not  if 
such  obstacle  exist,  49. 
case  where  lex  loci  does  not  permit 
equitable  estate,  nor  limitations  of 
legal  estate,  53. 
trustee  on  voyage  to  India  not  out 
of,  under  Lord  St.  Leonards'  Trus- 
tee Act,  838,  note  (e). 
JUROR, 

c.  q.  t.  of  lands,  when  qualified  to 
be,  592. 
JUS  DISPONENDI, 

of  c.  q.  t,  21,  595,  et  seq. 
JUS  HABENDI, 

of  c.  q.  t.,  21,  585,  et  seq. 

KENT, 

custom  of.     See  Infant. 

KING.     See  Crown. 

KNIGHT  OF  A  SHIRE.    See  Mem- 
ber of  Parliament. 

LACHES.     See  Acquiescence. 

Bar  from,  to  relief  in  equity,  373, 

741,  et  seq.     See  Limitation. 
account  restricted  to  filing  of  bill, 

756,  note, 
constructive  trust  to,  224. 
impeaching  fraud  of  executor  to, 

459. 
resulting  trust  to,  207. 
setting  aside  trustee's  purchase, 

470. 
Not  imputable  to  persons  in  distress, 

471 ;  and  see  737. 
or  in  ignorance,  471. 
to    remainderman   of    renewable 

leaseholds  during  life  of  tenant 

for  life,  402. 


778 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


LACHES,  continued. 

Trustee  of,  in  enforcing  covenant, 
765  ;    investing  trust  property, 
764 ;  insuring,  764. 
shall  not  prejudice  c.  q.  t.,  effect 
of  the  rule,  719,  et  seq. 
LAND.     See  Residiing  trust. 

converted   to   be   taken  as  money. 

See  Conversion. 
Dischai-ged  from  trust  where  money 

has  been  raised,  428. 
Tortiously  sold  by  trustee,  c.  q.  t. 
may  require  purchase  of  other 
lands  of  equal  value,  763. 
or  may  take  proceeds  of  sale  with 

interest,  764. 
or  present  estimated  value  of  lands 
sold,  allowing  for  improvements, 
ib. 
Trust  money  tortiously  invested  in, 
by  trustee,  may  be  followed,  206, 
762,  763;  but  see  757. 
•'LANDS," 
devise  of  will  pass  money  to  be  laid 
out  on  land,  796. 
LAND-TAX, 

of  lunatic's  estate,  redeemable  by 
sale  of  timber  fit  to  be  cut,  826. 
LAPSE, 

of  time.     See  Laches,  Time. 
LAPSED  LEGACY, 

out  of  real  estate.     See  Legacy. 
LAWFUL  TRUSTS,  22,  c.  vi.  s.  1,  p. 

103.     See  Unlawful  trusts. 
LEASE.      See    Charities.     Leasing, 
power  of. 
Covenants,  indemnity  against,  exe- 
cutor of  lessee  entitled  to,  426  ; 
unless  he  has  assented  to  be- 
quest, ib. 
trustee  for  sale  cannot  insist  on 
where   settlor   is  an   assignee, 
426  ;  and  see  223. 
what  inserted,  when  lease  granted 
by  devisees,  or  to  executors,  425, 
note  [k). 
Duration  of  building,  510. 

of  husbandry,  508,  et  seq. 
Trustees,  their  power  to  grant  gene- 
rally, 522. 
not  to  or  for  benefit  of  themselves, 

462,  505. 
for  sale  cannot  grant,  416. 
LEASEHOLDS.        See     Renewable 
Leaseholds,  Renewals. 
Converted,  they  should  be  when  be- 
queathed in  succession,  808. 
unless  contrary  intention  can  be 
collected,  809,  et  seq. 
Power  to  purchase,  349. 
Security,  when  authorized  as,  349. 


LEASING,  POWER  OF, 

Effect  of  in  determining  legal  estate 
taken  by  trustee,  259  ;  see  257. 
as  to  effect  of  trust  for  leasing, 
see  256. 
"Usual   power,"  is  a,   164;     so  of 
granting    building    or   mining 
leases  where  property  requires, 
ib.;  but  see  165. 
where   inserted   under  executory 
trust,  silent  as  to  powers,  164. 
LEGACY.     See  Legatees,  Residuar;/ 
Legatee. 
Devised  real  estate  out  of,  and  which 
lapses  or  is  void,  sinks  for  bene- 
fit of  devisee,  if  by  way  of  charge, 
179,  189,  193. 
if  bv  wav  of  exception,  results  to 

heir,  193. 
unless  subject  to  residuary  devise 
under  1  Vict.  c.  26,  s.  25,  195. 
whether  it  can  be  passed   under 
gift  of  residuary   personal  es- 
tate, 196,  197. 
Executor  may  appropriate,  517  ;  his 
assent  to,  243,  426,  454 ;  he  may 
claim  though   he   renounce   pro- 
bate, 234;  in  East  Indies  to,  for 
trouble,  may  be  disclaimed  and 
commission  taken  instead,  547. 
Heir  to,  will  not  necessarily  rebut 

resulting  trust,  181. 
Limitation,  Stat,  of,  when  legacy  is 

barred  by,  744,  note  {x). 
Sale  of  estate,  charged  with  legacy 
not  yet  payable,  430. 
LEGAL    CHARGE.      See    Charge, 
Purchaser. 
trust   distinguished  from,  18 ;    and 
see  282. 
LEGAL  ESTATE, 

Assign  it,  trustee  may,  262  ;  but  as- 
signee bound  by  trust,  unless  pur- 
chaser without  notice,  279. 
Bankruptcy  of  trustee,  how  it  is  af- 
fected by,  273,  and  see  287. 
assignees,  if  they  take  trust  estate, 
are  bound  by  trust,  280. 
Burdens  annexed  to  legal  estate  in 
trustee.     See  Privileges,  &c.,  inf. 
Chattels,  devolution  of,  to  adminis- 
trator or  executor  of  trustee,  260: 
subject  to  trust,  279  ;  and  see  Ex- 
ecution, Executor,  Probate  (Pre- 
rogative). 
Curtesy,  is  subject  to,  in  trustee,  260 ; 
but   tenant   by,  bound   by  trust, 
279. 
Devise  it,  trustee  may,  or  bequeath 
it,  262. 
when  it  passes   under  general 


INDEX. 


779 


LEGAL  ESTATE,  continued. 

devise,  262,  et  seq.     See  De- 
vise. 
when  trustee  should  devise  trust 
estate,  265. 
whether  devisee  can  execute  the 
trusts,   268 ;    as  to  leaseholds, 
see  267. 
Disseisor  of  trustee  is  not  bound  by 

the  trust,  287. 
Dower  is  subject  to,  in  trustee,  260, 
but  dowress,  bound  by  trust,  279. 
Equitable,  compared  with,  44,  103. 
Escheat,  estate  in  trustee  formerly 
subject  to,  secus  now,  260. 
whether  lord  taking  by,  bound  by 

the  trust,  280,  et  seq. 
as   to  copyholds   and   customary 

freeholds,  see  283,  284.  _ 
as  to   equity  of  redemption,  see 
284. 
Forfeiture,  estate  in  trustee  formerly 
subject  to,  secus  now,  260 ;  see 
286. 
but  the  lord  was  liable  to  the  trust, 
280. 
Heir,  devolution  of  trust  estate  to, 

260  ;  bound  by  trust,  279. 
Insolvency  of  trustee,  how  it  is  af- 
fected by,  278.     See  Bankruptcij, 
sup. 
Judgments  against  mortgagee, 
against  trustee  bind  trust  estate, 
but  c.  q.  t.  protected,  278,  279; 
and  see  280. 
Outlawry  of  trustee,  its  effect,  287. 
Privileges,  &c.,  annexed  to  legal  es- 
tate in  trustee,  268,  et  seq. 
e.  g.  he  brings  actions,  269  ;  see 
590,  591,  proves  in  bankrupt- 
cy, presents  to  living,  appoints 
steward,   269 ;    pays    admis- 
sions   for    copyholds,    272 ; 
liable  to  rates,   271;  trading 
as    trustee    is    amenable  to 
bankrupt    laws,     272 ;    title 
deeds  as  to,  592. 
whether  entitled  to  vote  for  coro- 
ner,  269  ;  see  592 ;  not  for 
member  of  parliament,  271. 
Settlor,  becoming  re-vested  in,  will 

not  defeat  trust,  99. 
Trustee  in,  c.  xi.  p.  246.     See  512, 
590,  Privileges,  &c.,  sup.  Uses, 
Stat,  of,  inf. 
(1)  commensurate   with   trust  if 
possible,  249  ;  see  252. 
legal  estate,  enlarged,  250  ;  sup- 
plied in  toto,  e.  g.  by  nature 
of  trust  for  feme  covert;    by 
appointment    of     ''  trustee," 


"  trustee  of  inheritance,"'  by 
devise  to  A.  as  trustee,  and 
nomination  by  codicil  of  B. 
"  as  trustee"  in  place  of  A., 
250. 
(2)  legal   estate   curtailed,   from 
nature  of  trust,  252. 
limitation  in  fee  to  trustees  to 
preserve  when  cut  down,  253. 
fee    where  trustees  take  with- 
out "heirs,"  251,  et  seq. 
where  given  to  trustees  on  par- 
tial trust,  remaining  interest 
executed  by  Stat,  of  f  ses. 
253,  et  seq. ;   see  252,  257, 
and  Uses,  Statute  of,  inf. 
exceptions,  e.  g.  where  trusts 
for    separate   use  intervene. 
255,  256  ;  trust  for  leasing, 
to  raise  money  by  sale,  256  : 
discretionary  powers  in  trus- 
tees, 257  ;  secus,  if  such  pow- 
ers do  not  affect  fee,  258. 
late  Wills  Act,  its  effect  on  de- 
vises to  trustees,  259. 
Uses,  Statute  of,  when  legal  estate 
executed  by,  in  c.  q.  t.,  246  : 
partially,  252,  253. 
special  trusts  are  not  within,  247. 
e.  g.  under  trust  to  "  apply 
rents,"  "  convey"  estate,  247. 
see  252  ;    "  hold  for  separate 
use,"    247,    see   255 ;     "  pay 
rents,"   247;  see  252;  "pre- 
serve contingent  remainders," 
"  raise  money,"  "  sell,"  247 — 
trustee  takes  legal  estate, 
secus  where   trust  under  deed 
"  for  A.  &c.,  for  her  separate 
use,"  247  ;  to  permit  A.  to 
receive,  248,  see  252  :  copy- 
holds   "  to    be   transferred," 
248  ;  or  mere  charge  of  debts. 
248,  see  251. 
whether  under  trust  "  to    pay 
unto,  or  permit  to  receive." 
249. 
LEGAL  POWERS, 

distinguished  from  equitable.  525. 
LEGAL  TITLE, 

relief  upon  in  court  of  equity :  see 
752,  note  (1). 
LEGATEE.     See  Leffacj/. 

Accounts  may  require  inspection  of. 

but  no  copy,  599. 
Fraudulent  sale  of  assets  by,  execu- 
tor may  impeach,  459. 
Payment,  may  claim,  when  exclu- 
sively interested  in  legacy,  597  ; 
legacy  to  purchase  annuity,  ib. 
Trust  cannot  be  averred  against.  59. 


780 


LEW  IN    ON    THE    LAW    OF    TRUSTS,    ETC. 


LESSEE, 
not  prejudiced  where  purchase  by 
trustee  for  sale  set  aside,  467. 
LETTER, 

may  prove  declaration  of  trust,  63. 
how  far  parol  evidence  may  be  ad- 
mitted to  writer  of,  64. 
LETTERS  PATENT, 

necessary  for  declaration  of  a  use  by 
crown,  59  ;  see  24. 
LEVARI  FACIAS.    See  Judgment. 
execution  under,  as  to  equitable  es- 
tates, 649. 
legal  estates,  646. 
writ  of,  from  the  crown,  646,  note  (1). 
LEX  LOCI.     See  Jurisdiction. 

descent  of  trust  is  subject  to,  680  ; 
see  681. 
LIABILITY.     See  Corporation,   Co- 
trustees, Executor,  Investment. 
c.  q.   t.  of,  who  has  concurred   in 
breach  of  trust,  771  ;  see  353,  392, 
^&S,  846 ;  for  trustees'  expenses, 
562  ;  see  873. 
Ferae  covert,  separate  property  of, 
633,  et  seq.,  639,  640,  642.     See 
Feme  Covert. 
Husband   of,   for  wife's  l)reach   of 

trust,  34;  see  261. 
Solicitor,  of,  for  wilfully  advising  or 
concurring  in  breach  of  trust,  763, 
note  {d). 
Trustee,  of,  for  breach  of  trust;  see 
Breach  of  trust ;  for  destruction 
of  contingent  remainders,  406, 409 ; 
410  ;  for  improper  sale,  415  ;    for 
misrepresentation,  604,  847 ;  for 
parting  with  fund  after  notice  of 
incumbrance,  605 ;  and  see  Con- 
veyance. 
LIFE.    See  Tenant  for  JAfe. 
LIEN.     See  Mortgage  (Equitable). 
c.  q.  t.,  of,  on  property  into  which 
trust  estate  is   tortiously   con- 
verted, 756,  et  seq.,  759,  763. 
not  against  land  properly  sold  for 
misapplication  of  proceeds,  428. 
Creditor  having  specific  lien,  as  to 
proof  of  debt  by,  485. 
whether  he  releases  by  executing 
trust  deed  for  payment  of  debts, 
486. 
Joint  tenant,  of,  for  improvements, 

202. 
Judgment  ci-editor,  of,  689,  691. 
Purchaser  with  notice  of  lien,  bound 

by,  725. 
Tenant  for  life  of,  who  renews  for 
contribution  from  remainderman, 
398,  400. 
Trustee,  for  expenses,  560. 


who   has   renewed   for    improve- 
ments, 222,  see  224;  renewal, 
222. 
on  policy  for  money  advanced  for 

premiums,  764. 
persons  employed  by  trustees  have 
no  lien  upon  trust  fund,    not- 
withstanding charges  of  expen- 
ses, 101,561  ;  and  see  Solicitor. 
LIMITATION, 
Generally,  how  far, 
chattels  capable  of,  at  law,  by  will, 
104  ;  as  to  deed,  ib. 
by  way  of  trust,  104. 
words   of,   how    far    required   to 
create  equitable  fee  under  a  will 
or  deed,  141. 
Of  suits   in   Equity.     See    Mesne 
Rents  and  Profits,  Statutes  of  inf. 
[a)  by  analogy  to  statutes,  731,  et 
seq. 
twenty  years  an  equitable  bar  by 
analogy  to  statute  of  James, 
733.  _ 
when   time  ran   as  against  re- 
mainderman of  equity  of  re- 
demption, 733. 
five  years  in  case  of  fine  by  vol- 
unteer without  notice  of  con- 
structive trust,  733. 
notwithstanding    distress,     igno- 
rance, mistake,    poverty,   733, 
note  (z)  ;  see  737. 
secus  in  case  of  concealed  fraud, 
734,  note  (6)  ;  and  see  743,  754, 
note,  and  756,  note, 
how  defendants  should  plead  sta- 
tute, 734  ;  and  in  case  of  fraud, 
735. 
(6)  from  inconvenience,  739,  etseq.  ; 
as  to  charities,  787,  et  seq. 
when  parties  dead,  and  vouchers, 

&c.,  lost,  739;  see  741. 
whether  mere  lapse  of  time  a  bar, 
739,  741,  742. 
(c)    from  laches  in   application   to 
court,  741,  et  seq. 
where  alleged   fraud,   460,    742 ; 
accounts  between  partners,  742. 
purchase  by  trustee,  or  of  rever- 
sion, 470,  741,  742,  776 ;  spe- 
cific performance,  742. 
where  there  is  a  Statute  of  Limi- 
tation, 742,  743. 
{d)  from  presumption,  735,  et  seq. ; 
as  to  charities,  786  ;   corpora- 
tion, 790. 
when  raised,  735  ;  ground  of,  736  ; 

favoured  in  law,  ib. 
raised  within  twenty  years  where 
aidedby  evidence,  736;  see  224. 


I X  D  E  X. 


iSl 


LIMITATIOX,  continued. 

secus  whei-e  rebutted  by  evidence, 

736  ;  see  224. 

waiver  and   acquiescence  distin- 
guished, 737. 
not  raised   in  case  of  ignorance, 

737  ;    weakened  by  distress,  ib. 
not  raised  against  a  class  as  a- 

gaiust  individuals,  471,  738, 777. 
defendant  cannot  avail  himself  of 
by  demurrer,  738. 
Sfaiuteof. 
Generally, 
apply  as  between  c.  q.  t.  or  trus- 
tee and  stranger,  719,  720. 
claiming  by  adverse  possession, 
288,  720,  747  ;  see  735,  note 

purchaser  with  notice,  725  ;  and 
see  722,  745  (as  to  volunteer 
claiming  under  trustee,  see 
inf.) 

even  where  c.  q.  t.  is  an  infant, 
720  ;  and  see  744. 

do  not  apply  as  between  c.  q.  t. 
and  trustee  in  direct  or  ex- 
press trusts,  719,  729,  745; 
see  748,  752  note  (1),  7G3, 
and  volunteers  claiming  under 
trustee,  745;  and  see  279, 
724.  _ 

secus    in    constructive    trusts, 
729;  see  733,  74G. 
charities,  whether  they  apply  to, 

786  ;  and  see  749. 
debts,  how  far  applicable  to  trusts, 
for  payment  of,  484,  485,  747. 

to  charges  for  payment  of  debts, 
746. 
debts,  whether  executor  liable  for 

paying  debts  barred  by,  520. 
pleaded,  how  they  should  be,  734, 

735 ;   as    to  rents  and    profits, 

751,  754,  note. 
Late  statute  of,  743  et  seq. ;  its  ef- 
fect as  to, 
Acquiescence,  743. 
Arrears   of  rent   &c.,    six  years, 
744 ;  as  to  pleading  statute, 
see  751,  754,  note. 

but  in  case  of  express  trust  c. 
q.  t.  may  recover  all,  748, 
752,  note  (1). 

or  where  subsisting  term  under 
which  trustee  may  recover 
possession,  748,  749. 

as  to  case   of  express  trustee 
ignorant  of  his  true  charac- 
ter, see  751. 
Charities,  whether  within  the  Act, 

749,  750,  786. 


Charge,  744,  74G. 

coupled  with  duty,  746;  and  see 
747. 
Constructive  trusts,  not  saved  bv 

section,  25,  746. 
Disabilities,  744. 
Disseisor,  747  ;  see  288. 
Dower,  arrears  of,  755,  note. 
Express  Trusts,  what  are  within 
the  Act,  743,  745  et  seq. ;  and 
see  748. 
Fraud,    743,   distinguished    from 
mere  charge,  746  ;  and  see  747. 
Interest,  arrears  of,  744,  748. 
Lands,  743,  et  seq. 
Legacy,  744. 

Possession,  effect  of,  744  ;  by  one 

of  several  cs.  q.  t.,  748. 

adverse,  747. 

Purchaser,  as  against,  743,  745. 

under  marriage  settlement,  745. 

Remainderman,  745  ;  see  722,  and 

compare,  733. 
Rents,  see  Arrears  of,  sup. 
Residue  or  share  of,  744,  note  [x). 
Volunteer  claiming  under  trustee, 
745. 
LIS   PENDENS, 

effect  of  upon  powers,  523,  544,  581. 

See  Decree,  Suit. 
trustee  appointed  during,  should  be 
sanctioned  by  court,  544,  582. 
may  during  lis  pendens  solicit  dis- 
charge by  petition  or  motion, 
583. 
LOANS, 

trust  for,  502. 
LONG  ANNUITIES,  340,  352,  353. 
where  to  be  converted,  808. 
when  to  be  enjoyed  in  specie,  809, 

LORD  OF  MANOR.    See  Escheat. 
infant  may  give  effect   to   custom. 
36. 
LORD  CHANCELLOR.     See  Chan- 
cellor, 
LOST, 

where   part   of  trust  estate  is,  how 
court  makes  appointment  of  new 
trustees,  244. 
LOTS, 

whether  trustee  for  sale  may  sell  in. 
423. 
LUNATIC.     See    Chancellor,     Com- 
mittee, Trustee  Acts. 
Conversion  of  his    estate  made  for 
his  own  benefit,  825,  826  ;  other- 
wise not ;  see  828. 
real  estate   sold  for   payment  of 

deb's,  826. 
timber   cut   on    estate   ex   parte 


L 


782 


LEW  IN    ON    THE    LAW    OF    TRUSTS,    ETC. 


LUNATIC,  continued. 

paternt,  applied  to  relief  of  es- 
tate ex  parte  maternR,  826. 
proceeds  of,  applied  to  pay  debts, 
redeem  land  tax,  827. 
not  required,  go  to  next  of  kin, 

827. 
so  when    felled    tortiously   by 
stranger,  828,  829. 
should  not  be  purchased  for  re- 
pairs, &c.,  (to  serve  committee's 
interest),  where  it  might  be  cut, 
828. 
personalty  applied  to  bring  action 
of  trespass ;  to  relieve  charge 
on  realty  ;    for  improvements  ; 
necessary   expenses,    e.   g.   re- 
pairs ;    renewal    or    admission 
fines,  827,  828. 
as  to  building  farm-house,  see  827, 
note  (x). 
Conversion  not  suffered  but  where 

clearly  for  lunatic's  benefit,  828. 
Deed  of  void,  27  ;  feoffment  voidable 

by  heir,  ib. 
Disability,    how    remedied     where 
mortgagee,  trustee,  &c.,  832,  895 
note  {m) ;  and  see  TrusteCy  inf. 
Elect,  cannot,  816. 
Fine  or  recovery   by,    valid   unless 

reversed,  27. 
Heir  of  founder  of  charity  lunatic, 
visitatorial   power    exercised    by 
crown,  495. 
Trust  declared  by,  court  may  set  it 
aside,  27. 
but  would    not  interfere   against 
purchaser  without  notice,  ib. 
Trustee,  disability  of;    see  Trustee 
Acts,  and  16   &  17  Vict.  c.  70; 
Lunacy  Regulation  Act,  1853,  s. 
137,  et  seq. 
Trustee  Relief  Act,  repayment  order- 
ed to  guardians   out  of  lunatic's 
funds  of  expenses  incurred  for  his 
support,  375,  note  (g),  see  p.  376. 

MAINTENANCE, 

Assignees  in  bankruptcy,  &c.,  take 

under  trust  for  maintenance,  &c., 

of  bankrupt,  &c.,  133,  134;    see 

598. 
Discretion  of  trustees,  fund  applica 

ble  at,  542. 
Infant  may  be  allowed  to  by  execu 
tor  out  of  interest  of  legacy,  517 

in  what  cases  out  of  capital,  517 
Power   of,   whether  authorized  by 

executory  trust  silent  as  to  powers 

164,  note  (x). 
Reference  to  ascertain  whether  pro 


per,  697. 
Trust,  for  a  special  trust,  247. 
MAJORITY, 

of  cs.  q.  t.  cannot  consent  to  trus- 
tee's relinquishment,  565. 
of  co-trustees,  298.     See  Co-trustees. 
Transfer  directed  at  their  instance 
under  Trustee  Relief  Amendment 
Act,  381. 
of  creditors,  whether  they  can  sanc- 
tion purchase  by  trustee,  464. 
MANDAMUS, 

to   compel   admission  of  trustee  to 
copvholds,   324. 
MANAGEMENT.  See  Powers  ( Gene- 
ral). 
MARRIAGE,    ^gq  Feme  Covert,  Feme 
Sole,  Husband. 
of  eldest  son  justifies  destruction  of 

contingent  remainders,  409. 
a  valuable   consideration,  745 ;    to 
whom  it  extends,  406. 
MARRIAGE   ARTICLES, 

construction  of  executory  trusts  in. 
See  Executori/  trusts. 
MARRIED  WOMAN.    See  Feme  Co- 
vert. 
MASTER, 

of  school  trust  for  finding,  501 ;  and 
see  as  to  salarv,  502. 
MEETINGHOUSE,  497,  498. 
MEMBER  OF  PARLIAMENT, 
trustee  cannot  now  vote  for,  270  ;  but 
c.  q.  t.  mav,  ib.,  and  593. 
MEMORANDUM.     See  Writing. 

may  prove  declaration  of  trust,  63. 
MERGER, 

takes  place  where  legal  and  equitable 
estates  meet,  if  commensurate,  16, 
et.  seq. 
MERITORIOUS     CONSIDERA- 
TION.    See  Consideration. 
MESNE  RENTS  AND  PROFITS, 
Account  of  on  equitable   title,  see 
752,  Note  1,  Part  I.,  at  commence- 
ment, 752  ;  Part  II.,  755. 
Charitable  trusts  in,  extent  of,  786, 
et  seq. ;  and  see  789,  for  limits 
adopted, 
compromise    with   attorney-gene- 
ral, 789. 
how   affected    by  inconvenience, 
787,  et  seq.;  by  mistake  of  trus- 
tee, 790  ;  in  case  of  parish,  791. 
Constructive  trusts  in,  224,  750,  et 
seq.;  see  752,  note  (1). 
prima  facie  from  time  when  rents 
intercepted,  751,  note  [y);  and 
756,  note, 
exception    1,  if  statute  pleaded, 
only  for  six  years,  751. 


I N  D  E  X. 


783 


MESNE  RENTS  AND   PROFITS, 

contirmcd. 

2,  where  defendant  has  no  no- 
tice of  plaintiff's  title,  only 
from  filing  of  bill,  751,  though 
plaintiff  an  infant  (see  554, 
555,  notes),  or  defendant,  (in 
fact)  express  trustee,  751. 

3,  where  plaintiff  guilty  of  laches 

only  from  filing  of  bill,  751. 
or  from  decree  in  great  laches, 
752. 
Express  trusts  in,  from  time  when 
rents  were  withdrawn,  752,  note 
1,  748. 
secus  where  trustee  ignorant  of 
his  true  character,  751 ;  and  see 
Charitable  trusts,  sup. 
Form  of  order  to  account,  752. 
Person  to  account  in  first  instance, 
assignee  but  without   interest, 
752. 
if  assignee  insolvent,  trustee  per- 
sonally liable,  752. 
Purchase  by  trustee  for  sale  on,  466. 
Relief  bill  for,  followed  by  bill  for 

account,  752. 
Renewal  of  lease  by  trustee,  &c.,  on, 
224. 
(a)  on  legal  title  where  account 
independent  of  other  relief, 
cannot  be  had  in  equity  except 
where   account  complicated, 
plaintiff  infant,  or  in  case  of 
mines   or   tithes,  753,  note  ; 
qu.  after  death  of  person  an 
account   of  assets,    ib. ;   qu. 
timber,  ib. ;  if  had  in  equity, 
is  confined  to  legal  limit,  754, 
note, 
where  former  legal  remedy  has 
expired  equity  will  not  assist, 
754,  note  ;  except  where  de- 
fendant at  fault,  755,  note ; 
or  fraud  or  mistake,  754,  note. 
{h)  on  legal  title  where  account  is 
incident  to  other  relief, 
cannot  be  had  in  equity,  755, 
note;  unless  plaintiff  dowress 
or  infant,  ib.;  or  where  plain- 
tiff applies  to  equity  to  aid 
action  at  law,  he  may  come 
back  for  account,  ib. ;  or  be- 
ing obliged  to  come  to  equity 
on  one  ground  and  to  avoid 
circuity,  ib. 
if  had  in  equity,  is  confined  to 

legal  limit,  756,  note, 
unless  where  defendant  guilty 
of  concealment,  fraud,  or  mis- 
representation, ib. 


but  if  plaintifit'  guilty  of  lache? 
confined  to  filing  of  bill,  ib. 
MILL.     Suit  to,  505. 
MINES, 

account  of  profits  of,  may  be  sought 

on  legal  title  in  equity,  753,  note. 

MINING  LEASE.    See  504,  Leasing, 

potoer  of. 
MINISTER.     See  Chapel. 
MINISTERIAL,  or  instrumental 

trusts,  21. 
MISCONDUCT  of  trustee  ground  for 
appointment  of  receiver,  870,871- 
fixing  him  with  costs  ;  see  Costs. 
for  his  removal,  711. 
MISREPRESENTATIONS.         See 
Fratid. 
Liability  of  trustee  for  making  frau- 
dulent, 847  ;  to  purchaser  of  equi- 
table interest,  604  ;  making  as  to 
accounts,  &c.,  877. 
Defendant  by,  where  plaintiff  kept 
out  of  estate  by,  account  of  rents 
from  accruer  of  title,  756,  note. 
MISTAKE, 

Grantee  does  not  take  beneficially, 

where  mistake  of  grantor,  178. 
Ground,    for   refusing    accounts    of 
mesne  rents,  &c.,  against  trus- 
tees for  charities,  790. 
for  seeking   account  of  rents  in 
equity  upon    legal   title,    754, 
note. 
Presumption  of  release,  mistake  re- 
buts, 737. 
Settlement  rectified  where  mistake. 

148,  note  {h). 
Statutory  bar,  mistake  does  not  pre- 
vent from  running  in  equity,  733 ; 
but  see  note  (z). 
Trustee  by  mistake  as  to  rights  oi 
parties  is  at  his  own  expense, 
365. 
investing  in  bank  stock  instead  of 

bank  annuities,  342. 
person  assuming  office  of,  by  mis- 
take,   accountable    as    trustee, 
244,  765. 
MIXTURE      OF      TRUST     AND 
POWER,  22. 
distinguished   from  trust   to  which 
power  is  annexed,  ib.,  and  see  526. 
MONEY,     See  BesuUing  trust. 
At  home,  800,  804;  see  823. 
Bills  and  notes,  distinction  between 

and  money,  758. 
Deposited,  may  be  in  bank  to  trust 

account,  296. 
Distributed,  how  it  may  be  to  cre- 
ditors by  assignees,  294  ;  and  see 
Distribution. 


784 


LEW  IN    ON    THE    LAAV    OF    TRUSTS,    ETC. 


MONEY,  continued.  ' 

Earmarked,   when,  Y57,    758 ;    see 

275. 
Followed  in  equity,  where,  757,  et 
seq. ;  mixed  with  trustees'  money, 
759  ;  paid  into  bank  to  account  of 
trustee,  760  ;  into  land  even  by 
parol,  206,  762. 
Land,   money  to  be    laid    out  in, 
treated  as  land.      See  Conver- 
sion^ c.  q.  t.  may  elect  to  take 
as  money,  598  ;  see  Election. 
results    on  failure  of  purpose  to 
executor  for  next  of  kin,  187. 
Transmitted,    may    be    through    a 

bank,  &c.,  295. 
Trust  to    raise,  is  a  special  trust, 
247,  and  see  Legal  Estate. 
MORTGAGE.   See  Demerara,  Equity 
of  Redemption,  Mortgagee,  Mort- 
gagor, Renewable  Leaseholds. 
Assets,  may  be  left  outstanding  on, 

by  executor,  329. 
Conversion  of,  into  31.  per  cent,  whe- 
ther  required    where    successive 
estates,  354. 
Costs,  dower  trustee  of   mortgagor 
not  entitled  to,  against  mortgagee, 
872. 
Devise  mortgage  in  fee  passes  under 

"  Securities  ''  for  money,  264. 
Executor     or    administrator    may, 
make  of  personal  estate,  453. 
M'ith  power  of  sale,  454. 
Equitable,  as  to  lands  in  Scotland, 
48. 
overrides    subsequent  judgment, 
280,  note  {;/). 
Infant's  realty  of,  whether  relieved 

by  his  personalty,  830. 
Investment    on.       See    Livestment 
(real  securities),  in  case  of  ac- 
cumulations   from    charity   es- 
tate, 504,  505. 
as  to  value  of  security,  &c.     See 

345,  349,  350,  351,  358. 
whether  trustees  can  release  part 

of  security,  521. 
trust  how  kept  out  of  sight  on,  or 
on  transfer,  346,  347. 
Judgment    creditor,    may    redeem, 
650  ;  as  to  tacking,  660. 
his  right  against  entirety  of  equity 
of  redemption,  660,  661. 
against  surplus  proceeds  under 
power  of  sale  in,  656. 
Limitation,  Statute  of,  where  equity 
of  redemption   barred    by   time, 
733. 
Lunatic's  realty,  relieved,  of  by  his 
personalty,  827. 


Paid  off,  the  heir  of  mortgagee  is 
trustee    for  mortgagor  who   may 
present  petition  for  re-conveyance, 
836,  note  [x). 
Power  of  sale  in,  who  are  assigns 
within  meaning  of,   420,    529. 
530. 
mortgagee  may  exercise  without 
mortgagor's  concurrence,  427. 
exercising  covenants  against  his 

own  acts  only,  425. 
mortgagor   whether,   he    can   re- 
strain sale  under,  422. 
surplus  under  is  real  or  personal 
estate  of  mortgagor  according 
as  sale  takes  place  before  or 
after  his  death,  808. 
survives,  419. 
Reconvey,  by  what  description  mort- 
gagee should,  595.    See  Paid  Off, 
sup. 
Suit  for  foreclosure  or  redemption 
necessary    parties  to,   842,    855, 
856. 
Tacking.     See  660,  662.  _ 
Tenancy   in    common,    implied    in 
equity,  on  joint  advance  on,  201  : 
see  202. 
Trust  to,  will  not  authorize  sale,  417; 
survives,  419. 
to  sell  whether  it  authorizes  mort- 
gage, 416. 
whether    included    in    the    word 
"  trust,"  under  Lord  St.  Leon- 
ard's Trustee  xVct,  836,  note  (x) ; 
see  882. 
Trustees.     See  Assets,  Investment, 
sup. 
MORTGAGEE.     See  Equity  of  Re- 
demption, Mortgage,  Mortgagor. 
Agent,  &c.,  he  may  employ,  556. 
Charge,  whether  he  may  buy  in  for 
his  own  benefit,  319,  note  (s). 
he  cannot,  for  insurance  in  absence 
of  stipulation,  516. 
Disability  of.     See  Trustee  Acts. 
Equity  of  Redemption,   in  fee,   he 
takes    (subject     to     mortgagor's 
debts),  where  mortgagor  dies  in- 
testate without  heirs,  322,  679. 
Fee  in,  heir  of,  trustee  for  mortga- 
gor, after   mortgage    paid   off, 
836,  note  [x). 
he  and  his  heirs,  trustee  for  him- 
self and  his  executors,  17,  and 
see  799. 
so  where   foreclosure,  or  release 
after  his  death,  18,  and  see 
note  (1). 
infant,  &c,,  835.     See   Tnisicc 
Acts. 


I N  D  E  X. 


785 


MORTGAGEE,  contlmted. 

Judgments  against,  657,  note  {f). 
Proof  by,    in    administration    suit, 
bankruptcy  or  trust  for  creditors, 
485. 
Purchase,  he  may  from  mortgagor, 

465. 
Renewal  of  lease  by,  218  ;  see  221. 
Sale  by.     See  Mortgage  (Power  of 

sale). 
Trustee,  how  far  a  mortgagee  is  to 
be  so  considered,  318,  516. 
MORTGAGOR, 

Fee  in  dying  without  heirs  and  intes- 
tate, 322,  679. 
heir  of,  may  require  exoneration 
out  of  personalty,  799  ;  but  see 
Mortgage  (Power  of  Sale),  and 
17  &  18  Vict.  c.  113. 
Notice  with,  of  trust,  should  see  to 

application  of  trust  money,  365. 
Trustee  for  sale,  under  Lord  St. 
Leonards'  Trustee  Act,  where 
equitable  mortgagee  has  obtained 
decree  for  sale,  83G,  note  {x),  837, 
note  (  /'). 
MORTMAIN, 

Accumulations  from  charity  estate, 
whether  they  may  be  invested  (1) 
in  purchase  of  land,  504,  (2)  on 
mortgage,  504,  505.     See  Charity 
Co  mm  iss  ioners. 
Charity  trusts,  of  realty  for,  what 
formalities  required  for  creating, 
132. 
Defendant  bound  to  answer  whether 
legal  estate  devised  to  him  on  se- 
cret trust  for,  71,  73. 
Devise  upon  trust  to  sell  and  pay 
part  of  proceeds  to  charity,  how 
far  avoided  by,  182,  note  (t). 
upon    secret    trusts   for,  whether 
void  at  law,  or  only  in  equity, 
78  et  seq. 
Legacy  to  charity,  charged  on  realty, 
192  et  seq. ;  see  195,  note  (x). 
MURDER.     See  Attainder. 

NATURALIZATION, 

act  of,  see  39,  and  note. 
NEGLECT, 

of  trustee,  as  to  calling  in  estate, 
328  ;  costs  of  trustees  in  case  of, 
876  ;  investment,  337  ;  legal  pro- 
ceedings, cause  of,  558  ;  to  pay 
premiums,  enforce  transfer,  764  ; 
see  766. 
NEPHEW, 

advancement  for  presumed,  216. 

covenant  to  stand  seised  extends  to, 
96. 


NEW  TRUST, 

created  without  intervention  of  new 
trustees,  91. 
NEW  TRUSTEES, 

Court  of  Chancery,  appointment  by. 
See   Trustee  Act,  s.  32 ;    Trustee 
Extension  Act,  s.  9. 
application  for,  under  Lord  St.  Leo- 
nards' Trustee  Act,  713,  834,  et 
seq. 
under  Trustee  Act,  714 ;  see  Trus- 
tee Act,  ss.  32,  37,  43,  App. 
under  Bankruptcy  Act,  714,et  seq. 
in  case  of  charitable  trusts,  716, 
718,  and  note  [h). 
charity  corporation,  716,  717. 
appointed  by  court,  cannot  exercise 
arbitrary  powers,  &c.,  712  ;  but 
as  to  receipts,  see  450. 
court  will  not  give  to,  power  of 
appointing  other  trustees,  713  ; 
and  see  Trustee  Act,  s.  33. 
how  satisfied  as  to  fitness  of  pro- 
posed, 712,  715,  895,  note  [p) ; 
and  see  583. 
appointment  of  by  court,  c.  xxv.,  s. 
1,  p.  710. 
where  no  trustee,  or  not  proper 

number,  &c.,  710. 
on  bankruptcy,  &c.,  death,  mar- 
riage (of  feme  trustee),  miscon- 
duct, opinions  (of  charity  trus- 
tees), refusal  to  act,  residence 
abroad,  &c.,  710,  711,  and  note 

(^)'  .  ,., 

where   power    to   appomt   which 

cannot  be  exercised,  713. 
not  from  mere  caprice  of  c.  q.  t., 
or  misunderstanding  of  duty  by 
trustee,  712, 
c.  q.  t.  in  remainder  may  apply 
for,  710. 
Generally, 

breach  of  trust  trustee  should  not 
retire  in  favour  of  one  who  in- 
tends to  commit,  580. 
charity  where  endowment  does  not 

provide  for  appointment,  408. 
costs  of  appointment  payable  out 
of  corpus,  582  ;  and  see  Trus- 
tee Act,  1850,  s.  51. 
if  no  fund,  then  often  paid  by 
tenant  for  life,  ib. ;  and  see 
584. 
case  of  trustee  removed  for  mis- 
conduct, 711. 
directory  power  to  appoint  when 
trustees  reduced  to  given  num- 
ber, 527,  580. 
impartial,  exercise  of  power  should 
be,  574. 


786 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


NEW  TRUSTEES,  continued. 

ineffectual   attempts  to  exercise, 

powers  of  old  trustees  remain, 

581  ;  and  see  570. 
legal   estate   transferred   without 

conveyance  on  appointment  by 

courtoftrustees  for  charity,  717; 

and  see  Vesting  Order. 
lis  pendens,  after  decree  trustees 

should  not  exercise  power  with- 
out sanction  of  court,  544, 581 ; 

see  582. 
lost,  when  part  of  trust  estate  is, 

how  court  appoints,  244. 
powers,  what  exercisable  by  trus- 
tee appointed  under  power,  533; 

appointed  by  court ;  see  Court, 

sup. 
severance  of  estate  from  powers, 

535  ;  of  trusteeship  relating  to 

several  estates,  whether  proper, 

579, 
tenant  for  life  who  has   sold  or 

mortgaged  his  estate,  whether 

he  can  exercise,  580. 
Number  to  be  appointed  ;  see  40, 41. 
court  does  not  limit  itself  to  original 

number,  575  ;  see  895,  note  [p). 
two  trustees  retiring,  appointment 

of  single  successor  improper, 

574. 
one  of  two  retiring,  appointment  of 

co-trustee  sole  trustee  improper, 

577. 
appointment  of  one  in  place  of 

several  improper,  577. 
cases  in  which  such  appointment 

has  been  supported,  ib. 
single  trustee  retiring  should  not 

appoint   two   successors,    574 ; 

unless  authorized,  575,  576. 
Persons  proper  for  ofSce.     See  T^-us- 

tee  (who  may  be), 
should  be  within  jurisdiction,  40, 

576,  577  ;  see  574,  710. 
0.  q.  t.  or  near  relative  undesirable, 

40,  579  ;  c.  q.  t.  sometimes  ap- 
pointed by  court,  579. 
fitness  of,  how  shown,  712,  715, 

895,  note  [p). 
Power  to  appoint,  usual  form  of  and 

suggested  additions,  5G6. 
(«)  Construction  of, 
"acting,"  571,  578,  and  see  415, 
449,  612  ;  "  incapable  to  act," 
does  not  extend  to  bankrupt- 
cy, and  qu.  whether  to  resi- 
dence abroad,  574  ;  "  refusing 
or  declining,"  includes  "  dis- 
claiming," 571;  or  retiring 
after  having  acted,  572  ;  "  re- 


fusing or  declining  or  other," 
578;  "  survivor,"  570;  "un- 
fit,"   extends    to  bankruptcy 
and     semble     to     residence 
abroad,  574;  and  see  710, 711. 
trustee  surviving  testator  may 
appoint  new  trustee  in  place 
of  one  who  predeceased  testa- 
tor, 572. 
power  for  tenant  for  life  with 
consent  of  "  surviving,  con- 
tinuing, or  acting  trustee  "'  to 
appoint,  how  construed,  573. 
(6)  Mode  of  appointing  under, 
where  power  to  surviving  or  con- 
tinuing trustees   or  trustee, 
and  both,  or  the  survivor,  are 
to   retire,  two   appointments 
usual,  578. 
secus,  where  power  to  surviving 
continuing  or  other  trustee, 
578. 
mode  of  vesting  trust  estate  in 

new  trustees,  568. 
as   to   money   in   funds,    «fcc., 

568;  see  App.  IV. 
chattels   real,  &c.,   568 ;    see 

App.  V. 
freeholds,  568,  569  ;  see  App. 
VI.,  VII.,  VIII. 
whether  necessary  to  complete 
appointment,  567,  568. 
((•)  Trustee  should  see  that  power 
contemplates  precise  case,  570, 
581. 
NEXT  OF  KIN, 

c.  q.  t.  dying  intestate  without  leav- 
ing, 198. 
Construed  "nearest  of  kin,"  707. 
Entitled   to   undisposed   interest  of 
money  to  be  laid  out  on  land, 
187.     See  Resulting  trusts. 
but  not  to  undisposed  proceeds  of 
sale   of  land.     See  Residuary 
Legatee,  183,  197. 
NOTES, 

may  be  followed  in  equity,  757,  758. 

See  Bank  Notes. 

NOTICE.     See  Purchaser,  Volunteer, 

Assignee  of  equitable   interest  by, 

604 ;  its  effect,  92 ;  see  280,  note  (y). 

How  given  to  trustees,  605  ;  and  see 

611,  612. 

to  one  of  several   trustees  good 

during  his  life,  609. 
not  after  his  death,  610. 
to  all  trustees  and  all  dying,  611. 
timeof  giving,  612  ;  and  to  whom 
(written  or  unwritten)  it  should 
be   given,    612  ;    and   what   it 
should  state,  613. 


INDEX. 


787 


NOTICE,  continued. 

where  trust  fund  consists  of  share 
in  company,  612. 
fund  in  court,  613,  614.     See 
Stop  Order. 
Priority  of  charge  from  priority  of 
notice,  605. 
as  against  assignees  in  bankruptcy 
in  case  of  choses  in  action,  607. 
whether  doctrine  applies  to  real 

estate,  605,  606. 
whether  second  incumbrancer  giv- 
ing notice,  but  without  making 
inquiries,  preferred,  608. 
want  of,  whether  an  objection  to 
title,  612. 
Purchaser,  with   or  without.      See 
Purchaser. 
to  one  purchasing  from  executor, 
that  debts  are  not  paid,  357. 
Recitals  presumed  from,  224. 
Solicitor,  implied  notice  by  employ- 
ing, 358. 
Trustee  of  equitable  interest  should 
give  to  holder  of  legal  estate, 
327. 
to,  of  paramount  title,  325. 
Voluntary  assignment  of  equitable 
interest,  whether  it  requires  notice, 
92,  280,  note  (?/). 
Will  of,  notice  of  its  contents,  454, 
see  457. 
NUMBER     OF     TRUSTEES,    710. 
See  Co-trustees,  Keiv  trustees.  _ 
only  four  allowed  of  bank  annuities, 

except  in  special  cases,  41. 
what  is  proper,  40  ;  and  see  574,  et 
seq.,  577. 
NUMEROUS, 

cs.  q.  t.,  when  some  may  sue  or  de- 
fend for  all,  851,  852. 

OFFICE, 

of  trustee,  its  general  properties,  c. 
XII.,  p.  289. 
OPERATION  OF  LAW, 

Trusts  by,  distinguished  _  from   im- 
plied  and    constructive   trusts, 
140,  note  (1). 
how  affected  by  Statute  of  Frauds, 

228. 
constructive  trusts  ;  see  Construc- 
tive trusts. 
intention  from,  expressed  or  pre- 
sumed, that  grantee  or_  devisee 
should  not  take  beneficial  inter- 
est, c.  VIII.  s.  1,  p.  176  ;  and  see 
Resulting  trust. 
purchases  in  names  of  third  per- 
sons upon,  c.  VIII.  s.  2,  p.  199  ; 
and  see  Residting  trust. 


OPINION.     See  Counsel. 

Charity  commissioners  of,  its  indem- 
nity, 785. 
trustees  of  chapel  holding,  contrary 
to  those  of  founder,  497,  499,  711. 
OPTION, 

to  purchase  whether  exercise  of  ef- 
fects retrospective  conversion,  808, 
and  see  note  {p). 
ORDER  AND  DISPOSITION,  277. 

See  594 
"  ORDERING  AND  DIRECTING," 

may  raise  a  trust,  168. 
ORPHANAGE  SHARE, 

money  to  be  laid  out  on  land  in  fa- 
vour of  child  formerly  not  brought 
into  hotchpot,  797  ;  see  note  (w). 
OURLAWRY,  28.     See  Forfeiture; 

of  trustee,  287. 
OVEY-PAYMENT, 

by  trustee,  373  ;  and  see  376,  note 
{t). 
OVERSEERS  AND  CHURCHWAR- 
DENS, 
how  they  hold  property  by  parlia- 
mentary  succession    under   59 
Geo.  3,  c.  12,  s.  17,  106. 
not  as  corporation  having  common 
seal,  106. 
Act  extends  to  freeholds  and  chat- 
tels real,  106. 
if  held  on  trust  exclusively  paro- 
chial, 107;  not  otherwise,  106. 
not  to  copyholds,  106  ;  nor  to  land 
vested  in  existing  trustees,  106. 

PAPISTRY  ACTS.    See  137. 

purchase  in  contravention  of,  does 
not  raise  resulting  trust,  203. 
PARAMOUNT, 

title  to  trusts,  notice  of  to  trustee, 
325. 
PARCELS, 

by  what  description  trustee  should 

convey,  595. 
whether  trustee  can  be  required  to 
divest  himself  of  trust  estate  in,  ib. 
PARENT, 

cannot  urge  meritorious  considera- 
tion against  child,  95,  note  (/). 
PARISHIONERS, 

Acquiescence,   whether    bound  by, 

777. 
Advowson  trust  of,  enforced  for  by 
bill,  not  information,  107,  and  see 
note  {y). 
Breach  of  trust  by,  retrospective  ac- 
count not  ordered  upon,  791. _ 
Clerk,    election    of,   prima   facie  in 
trustees,  107 ;  when  in  parish- 
ioners, 108. 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


PARISHIONERS,  continued. 

meaning  of  "  parishioners  and  in- 
habitants,"  108;    of  "  chiefest 
and  discreetest,"  ib. ;  of  "  rate- 
payers," 109. 
Yestry  not  usually  the  representa- 
tive of  a  parish  for  an  election, 
109. 
votes,  whether  women,    children, 
and  servants  entitled  to,  108. 
PARLIAMENT.     See  Index  of  Sta- 
tutes; Member  of  Parliament. 
Act  of,  necessary  for  total  alteration 

of  scheme  of  charity,  499. 
Resulting  trust  not  implied  in  eva- 
sion of,  203. 
PAROL     EVIDENCE.      See   Aver- 
meid. 
Acceptance  of  trust,  admissible  on 

question  of,  243. 
Advancement,  how  far  it  may  prove 
or  rebut  presumption  of,  214,  215. 
Crown  not  admitted  to  prove  decla- 
ration of  trust  by,  24.     See  Pen- 
sion. 
Disclaimer,  whether  it  may  be  by, 

236.     See  234,  235. 
Election,  whether  it  is  sufficient  to 

express,  824. 
Executors,  how  far  admitted  against 
title  of  executors  to  residue,  59. 
See  Executor. 
Investment  of  trust  money  on  land, 

admissible  to  prove,  206,  762. 
Purchase  with  another's  money,  ad- 
missible to  prove,  204. 
how  far  on  purchase  by  agents,  ib. 
Resulting  trustnot  rebutted  by,  when 
devisee  or  grantee  is  expressly 
made  trustee,  G8,  182. 
secus  if  arising   from   mere  pre- 
sumption, 181. 
on  purchase  in  name  of  stranger 
may  be  rebutted  by,  206.     See 
Residting  trust. 
whether  admissible  against  defen- 
dant's denial  by  answer,  205  ; 
whether  after  his   death,   205, 
206. 
Trust  is  inadmissible  to  prove,  since 
Statute  of  Frauds,  178  ;  see  60, 
62,  65,  600. 
(where  admissible   to  rebut,  181, 
205,  206,214,215.) 
secus  in   case  of  chattels  personal, 
61  ;  but  in  case  of  a  will,  see  Q&. 
PARTIES, 

In  suits  respecting  trusts,  c.  xxix. 

s.  1,  p.  841. 
Generally. 
General  practice,  841,  et  seq. 


under   30th    order  of  26th  Aug. 
1841,  where  trustees  under  de- 
vise may  represent  cs.  q.  t.,  852. 
853. 
under  32nd   order  of  26th  Aug. 
1841,  as  to  plaintifFhaving  joint 
and  several  demand,  853,  854. 
under  Chancery  Amendment  Act, 
rules  of,  s.  42,  854,  855. 
where,  under  rule  9,   trustees 

may  represent  cs.  q.  t.,  855. 
under  s.  47,  as  to  real  estate  in 
trustees  by  devise,  856,  note 
(m). 
under  s.  51,  court  may  adjudi- 
cate in  presence  of  some  only 
of   parties    intei'ested,   as  to 
portion  only  of  trust  estate, 
and  without  taking  accounts, 
856  ;  and  see  865. 
under  Trustee  Relief  Acts.     See 
Trustee  Relief  Acts. 
Bank.     As  to   making  the  bank  a 

party,  33,  note  (»),  859. 
Order  and  manner  in  which  trustees 
and  cs.  q.  t.  ought  to  appear  on 
the  record  as  plaintiffs  or  defen- 
dants, c.  XXIX.  s.  2,  p.  856. 
Trustee  iu  suit  for  determining  equi- 
ties, should  see  that  proper  par- 
ties are  before  court,  368. 
Suits  between  Parties  interested,  inter 
se  under  trust,  845. 

(a)  As  to  cs.  q.  t.,  general  rule  ;  all 

cs.  q.  t.  necessary,  845,  849. 
c.  q.  t.  abroad,  how  suit  may  pro- 
ceed, 849. 

entitled  to  aliquot  share  of  ascer- 
tained fund,  whether  other  cs. 
q.  t.  necessary,  850. 

having  assigned  his  interest  un- 
necessary, ib. 

cs.  q.  t.,  numerous,  where  some 
may  sue  or  defend  for  all,  851. 

c.  q.  t.  standing  out  process,  how 
suit  may  proceed,  850. 

suit  by  trustee  to  recover  funds, 
cs.  q.  t.  unnecessary,  851,  852. 
recent  variations  in  practice,  whe- 
ther 30th   order   of  26th  Aug. 
1841,  applies,  853. 

as  to  rules  of  Chancery  Amend- 
ment Act,  s.  42,  and  particu- 
larly rule  8,  see  854,  855. 

[b)  As  to  co-trustees,  general  rule : 

all  co-trustees  necessary,  845. 
even  though  future  suit  necessary 
to  adjust  equities  between  co- 
trustees, 845,  846  ;  see  768  ;  or 
though  co-trustee  insolvent,  848 ; 
trustee  becoming  bankrupt,  854 ; 


INDEX. 


789 


PARTIES,  cont'imied. 

so  third  party,  who  by  reaping 
benefit  of  trust  becomes  quasi 
co-trustee,  846  ;  see  768,  771. 
exceptions : 

purchaser  without  notice,  846  ;  or 
stranger  dealing  with  trust  fund 
without   notice,    and   who   has 
parted  with  fund,  846  5   trustee 
of    outstanding   term  or   mere 
equity,  848. 
trustee  who   is  mere   agent,  and 
whose  authority  revocable  un- 
necessary, 848  ;  so  trustee  who 
has   assigned   to  new  trustees, 
848 ;   or   who   has   disclaimed, 
847  ;  trustee  of  mere  equity  or 
outstanding  term,  848. 
trustee    guilty    of    fraudulent    or 
wrongful  act,    co-trustees    not 
necessary  parties,  846,  847  ;  e. 
g.  in  case  of  corporators'   com- 
pany, 847. 
representative  of  deceased  co-trus- 
tee, whether   necessary,    when 
co-trustee    insolvent,    847  ;  no 
party  to  breach  of  trust,  849  ; 
and  comp.  853  ;  not  personally 
charged    by    bill,   849 ;    relief 
waived,  847,  but  see  854. 
trustee  out  of  jurisdiction,  or  who 
cannot  be  found,  how  suit  may 
proceed,  847,  see  900. 
where  two  classes  of  trustees,  849. 
Suits  by  or  against  Strangers. 
General  rule,  all  cs.  q.  t.  and  trus- 
tees necessary,  841  et   seq.  ;  for 
modifications  of  rule,  see  852,  et 
seq. 
Assignees  of  bankrupt,  &c.,  sue  or 
are  sued  without  presence  of  credi- 
tors, 843. 
Creditors.     See  Eeal  Estate,  inf. 
Marriage    articles,    specific    perfor- 
mance   of,  844 ;    and   see  Settle- 
ment,  inf. 
Mortgagee  foreclosing, 

mortgage  to  A.  in  trust  for  B.,  A. 

necessary,  841. 

cs.  q.  t.  interested  in  mortgage  or 

equity  of  redemption,  whether 

necessary,  842 ;  andseenow855. 

Mortgagor  redeeming,  842  ;  see  now, 

855. 
Real  estate  in  trustees  for  payment 
of  debts,  &c.,  whether  cs.  q.  t.  ne- 
cessary, 843. 
whether  persons   having  specific 

charges  on,  843. 
under  s.  42,  rule  9,  of  Ch.  Am.  Act, 
855  ;  as  to  devise  and  effect  of 


(1)  30th  order   of  Aug.  1841, 
see  852  ;  (2)  Ch.  Am.  Act,  s.  47, 
see  856. 
Representative  specially  constituted 
for  all  purposes,  c.  q.  t.  unnecessa- 
ry, 844. 
Settlement  setting   aside,  cs.   q.   t. 
necessary,    855.     See     Marriage 
Articles,  sup. 
Specific  performance, 

if  trustees  contract  as  principals, 
cs.  q.  t.  unnecessary,  844. 
if  as  agents,  principals  are  ne- 
cessary, ib. 
contract  to  convey  to  A.  in  trust 
for  B.,  A.  necessary,  842. 
Term,  trustee  of,  in  annuity   deed, 
when  necessary,  842  ;  see  848. 
PARTITION.     See  Ireland. 

cases  of,  excepted  from  Lord  St.  Leo- 
nard's Trustee  Act,  339 ;  see  now, 
894,  note  (e). 
whether  powers  to  ''sell,"  "to  sell 
and  exchange,"  authorize,  417. 
PARTNER, 

Accounts  by  partners  against  estate 
of  deceased  partner  when  barred 
by  laches,  742. 
Jus  accresceudi,  excluded,  202. 
Payment  by  trustees  to,  373. 
Renewing  a  lease  is  trustee  for  part- 
nership, 218. 
PAYMENT.     See  Receipts. 
Assignees,  by  294. 
Bank,  into,  to  account  of  trust,  296  ; 
where   co-trustees,  to    their  joint 
account,  330. 
Instalments    by,    directions    as    to 
under  Trustee    Relief  Act,  375, 
note  (2),  p.  376. 
Legatee,  when  he    may  claim  pay- 
ment of  legacy  to  buy  annuity,  or 
when  accumulation  directed,  597. 
Trustee  by,  to  agent,  372  ;    comp., 
294. 
husband  of  feme  covert,  627  ;  in- 
fant, 372  ;  partner,  373. 
Trust  money  or  charity  of,  to  official 
trustees,  382. 
PAYMENT  INTO  COURT, 
Compulsory. 
At  the  hearing,  where  made  though 

not  on  motion,  868. 
On  motion,  must  be  founded  on  ad- 
missions in  answer,  865,  866, 

note  («)• 
butpayments  mentioned  in  answer 

may  be  verified  by  affidavit,  867. 
answer  must  contain  admission  of 

plaintiff's  title  or  probable  title, 

866. 


790 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


PAYMENT  INTO  COURT,  continu- 
ed. 

and  this,  upon  the  equity  alleged 
by  bill,  sufficient,  if  defendant 
admits  that  he  once  received 
the  money  and  has  parted  with 
it  improperly,  8G6,  867. 
or  that  he  is  debtor  to  trust  estate, 

868. 
admission  that  he  made  interest 

amounts  to  receipt,  867. 
but  generally  not  ordered  on  ad- 
missions  from   which    liability 
merely  inferred,  867. 
notice  of,  on  whom   it  must  be 
served,  865. 
Parties,  what  must  be  before  court, 

864,  865. 
Rise  of  stock  where  purchase  money 
paid  into  court  and  invested,  467. 
Share  of  fund  when  it  may  be  ordered 

into  court,  865. 
Title  sufficient  if  plaintififhave  a  par- 
tial title,  864  ;  and  he  may  move 
on  a  possible  title  if  all  parties  be- 
fore the  court,  865  ;  see  868. 
Under  Trustee  Relief  Acts.   See  Tms- 
tee  Relief  Acts,  p.  .^.75,  et  seq. 
"PAY  THE  RENTS," 
trust  to,  not  within  the  Statute  of 
Uses,  247,  248  ;  and  see  252. 
"PAY  UNTO,  OR   PERMIT  AND 
SUFFER  TO  RECEIVE," 
whether  within  the  Statute  of  Uses, 
249. 
PENSION, 

from  crown  to  A.,  trust  cannot  be 
raised  by  parol  for  B.,  57. 
"PER, 
assign  in  the,"  meaning  of  expres- 
sion, 279. 
PERFECT, 

trust  where   under  voluntary  assu- 
rance,81,  etseq. ;  see  Voluntary 
Assurance. 
once  created  not  subsequently  de- 
feasible 99. 
PERISHABLE   PROPERTY.     See 

Wasting  Property  ;  and  594. 
PERJURY,  205. 

"PERMIT   AND    SUFFER  A.  TO 
RECEIVE  RENTS," 
within  the  Statute  of  Uses,  248. 
PERPETUITY, 

cannot  be  obtained  through  medium 

of  a  trust,  103,  111,  132. 
trust  for  accumulation  must  not  lead 
to  110,  et  seq, 
PERSONAL, 

Contract  with  A.,  B.,  and  C.  jointly, 
eflect  of  disclaimer  by  A.,  237. 


Estate   of  testator    must,   properly 
speaking,  be  such  at  his  decease, 
196. 
gift  of,  will  not  pass  undisposed  of 

proceeds  of  sale  of  lands,  ib. 
unless  proceeds  directed  to  be  ta- 
ken as  personal  estate,  ib. 
or   intention    collected  from  will 

specially  worded,  ib. 
secus  where  testator  himself  enti- 
tled to  money,  807. 
how  far  intention  gathered  from 
blending  real  and  personal  es- 
tate, 196  ;  and  see  183. 
Incapacity.     See  Feme    Covert,  In- 
fant, Incapacity,  Lunatic,  Trustee 
Acts. 
Representative  oftrustee,billagainst. 
for  trustee's  breach  of  trust,  765 ; 
and  see  Parties,  3. 
entitled  to  proceeds  of  real  estate 
to  be  converted,  807. 
Security,  assets  must  not  be  left  out- 
standing upon,  328.     See  Invest- 
ment. 
PETITION, 

Lord  St.  Leonards'  Trustee  Act,  un- 
der,   839  ;    as  to   service  of,  see 
837,  note  (a). 
Of  right,  whether  open  to  the  subject 

where  the  crown  is  trustee,  31. 
Restraining  order,  for  860,  863. 
Romillv's  Act,  under,  780,  et  seq. ; 

see  782,  783. 
Stop  order  for,  614,  note  (I). 
Trustee  acts,  under,  896,  note  [t)  : 

897,  note  {v)  ;  903,  note  (c). 
Trustee  Relief  Act,  under,  378,  note 
{>l) ;  380  note  {a) ;  381,  note  (6). 
PIN-MONEY, 

arrears  of,  whether  recoverable,  644, 
and  note  [t] ;  and  see  Feme  Co- 
vert. 
PLEADING, 

Frauds,  Statute  of,  whether  it  must 

be  pleaded,  62.     See  137,  138. 
Limitations,  statute  of,  how  defend- 
ant avails  himself  of,  734,  735. 
as  to  accounts  of  mesne  rents,  &c., 
751,  754,  note. 
Presumption  in  matters  of,  738. 
POLICY    OF    INSURANCE.     See 

Insurance. 
POOR  OF  A  PARISH, 

Limitation  to,  void  at  law,  44,  105, 

and  see  836,  note  {w). 
Trust  for,  good,  105;  applied  to  edu- 
cation of,  501. 
who  take  under  such  trust,  105  ; 
see  note  (k)  ;  and  see  Parish- 
ioners. 


INDEX, 


roi 


POOR  OR  NECESSITOUS  RELA- 
TIONS, 

Gift  to,  how  construed,  G98,  note  (1). 
Power  of  distribution  amongst,  how 
construed,  698. 
PORTIONS, 

Power  to  charge  not  authorized  in 
executory  trusts  by  "  usual  pow- 
ers," 165. 
Time  of  raising,  by  trustee,  420  ;  see 
430. 
POSSESSIO  FRATRIS, 

of  a  trust,  618,  680. 
POSSESSION, 

c.  q.  t.  of,  when  a  bar  to  Statute  of 
Limitations,  744,  748. 
where  entitled  as  to  chattels,  593  ; 

as  to  lands,  585,  et  seq. 
his  right  recognized  in  equity  only, 
591. 
Transmutation  of,  where  necessary 
to  the  creation  of  a  trust,  81  ;  and 
see  Voluntary  Assurance. 
Trustee  for  sale  should  not  give  up, 
before  payment  of  purchase  mo- 
ney,  424 ;    whether   receiver   ap- 
pointed if  he  do  so,  871 ;  comp., 
351. 
POSSIBILITY, 

in  a  trust  assignable,  12,  600. 
"POST, 

assign  in  the,"  meaning  of  expres- 
sion, 279. 
POVERTY, 

Laches,  whether  it  will  excuse,  471. 
Presumption  of  release  of  right,  its 

effect  as  to,  see  737. 
Statutory  bar,  it  does  not  prevent 

from  running  in  equity,  733. 
Trustee  of,  whether  ground  for  ap- 
pointing receiver,  870,  871. 
POWERS.     See  Appointed;  Appoin- 
tees ;    Appointment ;    Neio  trus- 
tees;  Feme  Covert;  Infant;  Uses. 
Arbitrary,  526,  538,  694  ;    and  see 

Court,  Survivo?'s?iip,  inf. 
Assignment  of  estate,  its  effect  on 
powers,    mere    conveyance    of 
estate   will   not   carry   powers, 
533. 
new  trustees  appointed  under  a 
power  take  powers,  533. 
appointed    by    court,    whether 
they  take  special  discretion- 
ary powers,  533  ;  see  450. 
they  cannot  exercise  such  legal 
powers  as  are  unassignable, 
712. 
whether  power  will  remain  In  trus- 
tee  after  alienation  of  estate, 
534. 


court  may  sanction  severance  of 
estate  from  power,  535. 
Bare  powers,  and    powers    coupled 

with  trust, distinguished,  526,  695; 

and  see  22,  701. 
Construction  of  powers,  527,  et  seq. 

to  A.  and  his  assigns,  529;  to  sell 
in  mortgage,  ib. 

to  trustee  and  his  executors,  530  ; 
to  A.  and  B.  and  their  heirs, 
527  ;  to  trustees  and  the  survi- 
vors of  them,  531,  and  see  note 
(iv) ;  to  trustees  and  survivor  of 
them,  531,  and  see  note  [x)  ;  to 
executors,  sons-in-law,  trustees, 
trustees  for  the  time  being,  530  ; 
during  continuance  of  the  trust, 
531,  532,  and  see  note  (2). 
Court,  its  control  over  powers,  538, 
et  seq.     See  Imperative,  inf. 

(a)  court  cannot  interfere  with 
mere  discretionary  powers, 
538,  et  seq. 

e.  g.  to   advance  legacy,  538 ; 
to  approve  A.'s  conduct,  540 ; 
to  pay  annuity,  539  ;  to  pur- 
chase leaseholds,  541,  but  see 
542  ;  to  sell  at  request,  540  ; 
to  treat  with  creditors,  541. 
nor   where   trust    imperative, 
but  mode  of   exercising   it 
discretionary,  542. 

e.  g.  maintenance  of  children 
at  trustees'  discretion ;  dis- 
tribution of  fund  among  tes- 
tator's relatives ;  selection  of 
objects  of  charity,  ib. 

whether  trustees  should  state 
reasons  for  their  choice,  543  ; 
see  542. 

[b)  court  will  interfere  where  fraud, 

misbehavioui',  or  trustees  de- 
cline to  exercise  discretion, 
543. 
e.  g.  upon  improper  investment 
or  improper  leases,  ib. 
Decree   in   suit   paralyses  trustees' 
powers,  524,  544. 
seeus   as  to  mere   institution  of 
suit,  524. 
Delegation    of   discretionary  trusts 

not  permitted,  296  ;  see  449. 
Directory  explained,  527. 
Disclaimer   upon,    continuing   trus- 
tees may  exercise  special  powers, 
532,  533;  and  see  534. 
Discretionary,    526,    701 ;     see   22, 

386,  and  Arbitrary,  sup. 
Distinguished,  524;  and  as  to  mix- 
ture of  trust  and  power,  see  22  ; 
and  see  Gift,  inf.,  and  429. 


792 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


POWERS,  continued. 

Executory  trusts,  what  powers  may 
be  introduced  under,  164,  et  seq. 
Equitable  distinguished  from  legal 
powers,  525. 
may   be   annexed    to    estate    or 
simply  collateral,  ib. 
General  powers  of  trustees,  e.  xix, 
s.  1,  p.  512. 
trustee  may  do  without   suit  what 
is  compellable  by  suit,  513,  519. 
as    to    advancement,    518,    519; 
alienation  of  charity  estates,  515, 
and  see  503,  and  Sale;  appro- 
priation of  legacy  by  executor, 
517;  bill  in  parliament  oppos- 
ing, 515;  promoting,  516,  and 
see  494;  debts  admitting,  522, 
and    see    487 ;    compounding, 
paying,  or  releasing,  520,  524; 
improvements,    513,   514;    in- 
surance, 516;    investment,  see 
Investment,  and  524 ;   leasing, 
522,  see  416,  and  Leases;  main- 
tenance, 517  ;  mortgaging,  416, 
417,  see  Executor  (powers) ;  re- 
ceipts, see  Receipts  and  Execu- 
tor  (powers)  ;  reimbursements 
of  expenses,  521 ;  releasing,  see 
Debts,  sup.,  and    Release;   re- 
pairs, 513,  514;  sale,  see  Exe- 
cutor (powers)  ;  timber,  as  to, 
515,  and  see  Timber;  varying 
securities,  523. 
Gift,  words   of,  distinguished   from 

words  of  powers,  700. 

Imperative,  526, 536, 694, 701,  et  seq. 

court  will  execute  on  failure  or 

default  of  trustee,  696 ;  and 

see  543. 

where  settlor  has  prescribed  any 

rule,  court  adopts  it,  696. 
where  no  rule,  equality  is  equity, 

700  ;  see  707. 
in  favour  of  what  objects  court 
will  execute  where  immediate 
exercise  is  contemplated,  703, 
see  note  [d). 
where  immediate  exercise  is  not 
contemplated,    704 ;     where 
power  testamentary,  ib.;  not 
merely  testamentary,  ib. ;  by 
deed  or  will,  705. 
"next  of  kin,"  in  favour  of,  con- 
strued "nearest  of  kin,"  707. 
"  relations,"  in  favour  of,  how  con- 
strued, 705,  et  seq.;  poor  "re- 
lations," 698,  note  (1). 
to  whom  donee  of  power  may  ap- 
point, 705,  706  ;  to  whom  court 
may  appoint,  706,  707:  whether 


per  stirpes  or  per  capita,  706, 
707,  and  note  {s). 
when  to  one  of  a  class  exclusively, 
707,  708. 
Implied  ;  see  Implied  Poioers. 
Legal ;  see  Construction,  Equitable, 

sup. 
New   trustees   of,   appointing ;    see 

I\ew  trustees. 
"  Proper,"  what  authorized  by  this 

term,  164. 
Sale  of,  authorized  under  settlement 
by   reference,    165  ;     and   see 
Sale. 
distinguished  from  trust  for  sale, 
429. 
Selection  of;  see  Selection. 
Special  powers  of  trustees,  c.  xix.  s. 
2,  p.  524 ;  see  Assignment,   Con- 
struction, Control,Disclaimer,  sup., 
Survivcn'shij),  inf. 
Strict,  explained,  527. 
Survivorship  of,  mere  power  to  seve- 
ral does  not  survive,  536. 
trust  or  power  imperative  survives, 

ib. 
where  given  to  trustees  by  name, 

semble,  538. 
qu.  as  to  arbitrary  power  annexed 
to  trust,  ib. 
"Usual,"  164. 

AVill  to  appoint  by,  contemplates 
those  who  answer  description  at 
death  of  donee,  170,  704. 
PRACTICE.  See  Ansiver,  Bill,  Costs, 
Inforination,  Parties,  Pleadings, 
Petition. 
Alterations  in,   368,  et  seq. ;    852, 

854,  865. 
Application  to  lord  chancellor,  when 
visitor  of  charity,   by  petition  to 
great  seal,  495. 
Appointment  of  new  trustees,  583. 

See  Keic  trustees. 
Distringas,  as  to,  858.      See   Dis- 
tringas. 
Feme  covert,  having  separate  estate, 

as  to,  633,  640,  858. 
Payment  of  money  into  court,  as  to, 
864.      See    Payment    of  money 
into  court. 
Receiver,  as  to,  869.     See  Receiver. 
Stop  orders,  as  to,  613,  614. 
Wilful  default,  account  with,  not  or- 
dered on  further  directions,  765. 
conf.  as  to  interest,  359. 
PRAECIPE, 

equitable  tenant  to,  604. 
PREACHER, 

gift  to  find  a,  495;  and  see  Minis- 
ter. 


INDEX. 


793 


PRECATORY  WORDS, 
force  of,  167. 

will  not  create  trusts  where  objects 
or  subject-matter  of  trust  uncer- 
tain, l(i8,  et  seq. 
PRECAUTIONS  tu  be   adopted   by 
trustee.     See  Duties  of  trustee^  In- 
vestment, 
PREROGATIVE.     See  Prolate. 
PRESENTATION, 

trust  to  purchase  in  favour  of  a  par- 
ticular   person     within     statutes 
against  simony,  136. 
trustee  presents,  but  at  discretion  of 
c.  q.  t.,  269,  318. 
PRESUMPTION.    See  Advancement, 
liesulting  trust. 
Bar  from  to   relief  in   equity,  735, 
(see    Limitation  of  suits)  ;   how 
far  applicable  to  trusts  for  chari- 
ties, 787. 
Election  of,  by  c.  q.  t.,  823,  824. 
Infant,  gift  to,  presumption  that  he 

takes  beneficially,  39. 
Of  law,  may  be  rebutted  by  parol 
evidence,  181. 
PREVENTION, 

of  breach  of  trust ;  rights  of  c.  q.  t. 
in  c.  XXV.  p.  710.     See  c.  q.  t. 
PRINCIPAL.     See  Investments  (Lia- 
bilities), 
has   absolute   property,   factor   has 

only  special  property,  275. 
release  of,  discharges  accessory,  777. 
PRIORITY.     See  Notice,  Stoj)  order. 
PRIVATE, 

Contract,  whether  trustees,  &c.,  may 

sell  by,  422. 
Trusts,  23  ;  limits  of  their  duration, 
23;  see  103,111. 
PRIVILEGES, 

of  c.  q.  t.,  592,  et  seq.     See  c.  q.  t. 
of  trustee,  268. 
PRIVITY, 

as  applicable  to  cestui  que  use,  ex- 
plained, 3  ;  where  released  as  to 
trusts,  11. 
estate,  of,  explained,  3,  18;  extent 

of  term  "  privity  of  estate,"  18. 
person,  of,  explained,  19. 
PRIZES, 

taken  in  war,  25,  101.     See  Croivn. 
PROBATE, 

Duty  not  payable  on  proceeds  of 
land  to  be  converted  into  money, 
807. 
Prerogative,  when  required,  261  ; 
sovereign,  will  of  private  property 
of,  not  admitted  to,  25. 
PRODUCTION, 

Documents  of,  how  trustees  should 
May,  1858.— 51 


eovenunt  for,  425. 
Vouchers  of,  trustee  must  make,  428. 
See  599. 
PROHIBITION, 

issued  against  spiritual  court  inter- 
fering in  a  trust,  20. 
PROMISSORY  NOTE,  338.  See  BUI 

of  Exchange. 
PROOF, 
bankruptcy  in.     See   269,   Trustee, 

inf. 
mortgagee,    by,    in   administration 
suit,  bankruptcy,  and  trust  for  cre- 
ditors, 485. 
Trustee,  on  bankruptcy  of,  357  ;  and 
see  771,  772. 
"PROPER  POWERS," 

to  tenants  for  life,  what  powers  au- 
thorized by,  166. 
PROPERTY, 

what  mav  be  subject  of  trust,  c.  it. 

p.45. " 
how  far  property  out  of  jiirisdiction, 
47  ;  and  see  Abroad,  Jurisdiction. 
PROTECTION, 

C.  q.  t.  of.     See  c.  q.  t.  (Protection), 
Distringas,  Payment  into   Court, 
Receiver. 
Trustee,  of.     See  Indemniti/,  Trus- 
tee Relief  Acts. 
PROTECTOR, 

Of  settlement  under  Fines  and  Reco- 
veries Act,  411,  412. 
Consent  of,  to  vesting  order  under 

Trustee  Act,  885,  note  (/). 
Disclaimer,  how  he  must  make  of 

office,  237. 
Special,  whether  one  will  be  appoint- 
ed of  settlement,  in  pursuance  of 
executory  trust,  157. 
Trustee  he  is  not,  in  respect  of  his 
power  of  assent,  412. 
PROVING  WILL, 

an  acceptance  of  trust,  239  ;  but  see 
240. 
PROXY, 

appointment  of,  distinguished  from 
delejjation  of  office,  297. 
PUBLIC, 

POLICY;  see 497.  Securities,  352. 
Trusts    same    as    charitable   trusts, 
their  duration  permanent,  23. 
PUR  AUTRE  VIE.     See  Copyholds 
(for  lives), 
not  within  stat.  de  donls,  and  cannot 

be  entailed,  603,  note  (1)._ 
limited  to  one  aud  heirs  of  his  body, 
not  a  fee  conditional,  ib. 
PURCHASE, 

Power  to  purchase  by  way  of  invest- 
ment, 349. 


794 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


PURCHASE,  continued. 

Resulting  trust,  where  created  by 
purchase  in  name  of  third  per- 
son, 199  et  seq.  ^%q  Resulting 
Trust. 
not  when  in  name  of  child,  &c., 
207,  et  seq.  See  Advancement. 
Trustees  by,  reversion  of  renewable 

leaseholds,  225. 
Trustees  for  sale  by,  of  trust  proper- 
ty, 4G0,  et  seq.    See  Sale  ;  Tenant 
for  Life. 
PURCHASE  MONEY, 

whether  bound  by  judgments  against 
vendor,  654,  656. 
PURCHASER.    See  Settlement  (Rec- 
tification). 
Accidental   damage  to  estate   pur- 
chased, he  must  bear,  but  is  en- 
titled to  improvements,  174. 
Application    of    purchase    money, 
where  he  must  see  to,  430,  et  seq. 
See  Receipts. 
C.  q.  t.,  purchaser  is  a  c.  q.  t.  sub 

niodo,  175  ;  see  799. 
Charity  estate,    of,   503,  504.     See 

515,"  782,  note  («'). 
Chose  in  action  of,  from  trustee  bound 

by  same  equity  as  trustee,  729. 
Dying  intestate   aud    without   heir, 
after  payment  of  purchase  money, 
but    before    conveyance,    vendor 
keeps  estate,  322. 
Equitable  interest,  of,  must  inquire 
of  trustee  as  to  prior  incumbran- 
ces, 604. 
must  give  notice  of  his  own,  605 ; 
(and  see  Notice) ;  how  he  takes 
priority,  729. 
Equity  to  settlement  of  feme  covert, 

as  against,  370. 
Heir  taking  as,  see  17,  148,  680. 
Judgment  creditor,    is   not   a   pur- 
chaser, 280  ;  and  see  668,  note  [d). 
Legal  charge,  purchaser  bound  by, 
whether  with  or  without  notice,  18, 
282. 
Lunatic   or   idiot,   purchaser    from 

without  notice,  27. 
Notice.     See  Eqidtahle  interest  and 
Legcd charge,  Lunatic, sup.;  Trust 
and  Use,  inf. 
Security  to  solicitor  for   costs,  set 
aside  even  as  against  purchaser, 
550. 
Trust,  where  bound  by, 
purchaser  of  legal  estate  with  no- 
tice bound,  725. 
rule   applies   to    constructive 
trusts,      equitable     incum- 
brance, or  lien,  725. 


to  conveyance  by  fine,  224. 
notice  presumed  from  recitals, 
224. 
without  notice,  not  bound,  725. 

See  224,  406,  469. 
whether  he  can   protect  him- 
self by  getting  in  legal  es- 
tate, 726. 
with     notice    from    purchaser 

without,  not  bound,  ib. 
without  notice  from  purchaser 
with,  not  bound,  ib. 
in  case  of  equitable  interest, 

see  729. 
but   rule   does    not   apply  to 
charitable  use,  726. 
trustee  selling  to  purchaser  with- 
out notice,  and  then  becoming 
owner,  trust  revives,  726. 
whether  purchaser  bound  by  no- 
tice of  doubtful  equity,  727  ;  of 
title  long  neglected,  728  ;  and 
see  Chose  in  action,  and  Egid- 
tahle  interest,  sup. 
Voluntary  settlement  of  realty  not 
good  as  against  purchaser,  92,  93. 
See  Voluntary  Settlement. 
QUALIFICATION, 

of  c.  q.  t.  to  be  juror,  592. 
QUASI-TRUSTEE, 

person  becoming,  by  reaping  benefit 
of  breach  of  trust,  768,  771,  846. 
See  244. 
QUEEN.     See  Crown. 
QUEEN'S  BENCH, 

civil  corporations  visited  by,  495. 
"  QUI  PRIOR  TEMPORE, 

potior  jure,"  606  ;  and  see  note  {g). 
QUORUM,  299.    See  Co-trustees. 

RAILWAY  SHARES, 

bequeathed  in  succession,  converted 
into  £3  per  cents.,  812. 
RATES, 

trustees  liable  to,  unless  where  trus- 
tees  exclusively  for  public  pur- 
poses, 271,  272. 
trust,  in  aid  of,  496  ;  in  aid  of  church 
rates,  107. 
RATE-PAYERS,   109.    See  Parish- 
ioners. 
REAL, 

Estate  in  trustees  for  creditors,  &c., 
what  parties  necessary  for   suit, 
843,  see  855. 
Securities.    See  Investment. 
REALTY, 

effect  of  blending  into  one  fund  with 
personalty  under  a  will,  183,  196. 
REBUTTER, 

of  resulting  trust  upon  advancement. 


INDEX. 


795 


REBUTTER,  continued. 

214  ;  presumption  of  law,  181,  see 
182 ;  purchase  in  name  of  stranger, 
206. 
RECEIPTS, 

Agent  or  attorney  of,  372. 
Breach  of  trust ;  see  Trustee,  inf. 
Charge  of  debts   implies   power  of 
giving  receipts,  433,  440. 
who  can  give  receipts  in  case 
of,  440  ;  true  principles,  448. 

1.  Devise  to  trustees  ;  trustees  and 

executors  can  sell  together, 
440. 
whether  executors  have  legal 
power  and  can  pass  the  estate 
independently  of  trustees,  qu., 
441  ;  and  see  443  and  notes. 

2.  Beneficial  devise,  with  charge 

of  debts,  443. 

devisee  where  executor  also  can 
make  a  title,  444. 

and  semble  devisee,  without  con- 
currence of  executor,  can 
make  a  title,  ib. 

3.  Where  no  devise  of  estate,  444. 
heir  cannot  give  good  receipt, 

semble,  and  why,  ib. 
whether   executor    takes   legal 

power  of  sale,  445. 
executor  takes  equitable  power 
of  sale,  semble,  445,  446, 
note  (?•). 
and  on  his  exercising  it  con- 
veyance must  be  made  by 
person  having  legal  estate 
or  under  Trustee  Acts,  446. 

4.  Simjile  devise  which  lapses,  447. 
whether  executor  can  take  power 

of  sale,  qu.,  447. 

5.  Where  estate  subjected  to  vari- 

ous limitations,  ib. 
semble,  executors  take  an  equi- 
table power  of  sale,  448. 
Co-administrators  on   same  footing 

as  co-executors,  316. 
Co-executor  liable  for  joining  in  pro 
forma,  310,  et  seq. 
unless  his  joining  nugatory,  311, 
or  ex  necessitate,  314 ;  and  see 
Executo7\ 
Co-trustees  must  all  join  in  giving, 
298,  330. 
even  co-trustee  who  has  conveyed 

estate  to  the  others,  449. 
secus  as  to  co-trustee  who  has  dis- 
claimed, ib. 
co-executor,  310. 
co-trustee  joining  in  but  not  actu- 
ally receiving,  not  liable,  304; 
secus  where  money  improperly 


raised,  306. 
but  joint  receipt  conclusive  at  law 
of  actual  receipt,  305;  and  see 
313. 
and  involves  onus  proband!  that 
co-trustee  did  not  receive,  305; 
see   Co-trustee,   Indemnity,  In- 
vestment. 
Discharge  of,  428,  430;  see  Power 

of  Giving,  inf. 
Executor,  where  his  receipt  will  dis- 
charge a  purchaser,  453,  et  seq. ; 
see  Executor  (Powers). 
Executory  trusts  silent  as  to  powers 
whether  it  authorizes  power  to  give, 
164,  note  {x). 
Husband  of  feme  covert,  of,  627. 
Infant,  of,  372. 

Liability  for  joining ;  see  Co-execu- 
tors, Co-trustees,  sup. 
Official  trustees,  of  charitable  funds 

of,  382. 
Partner  of,  373. 

Power  of  giving;  see  451,  Cliarye 
of  debts.  Executor,  sup.,  Pur- 
chaser, Time,  inf. 

1.  Express,  430  ;  see  331. 

2.  Implied,  431,  et  seq. 

(1)  By  direction  in  power  of  im- 

mediate sale,  431 ;  see  330. 
e.  g.  when   future   distribution 

of  proceeds  directed,  431. 
or  cs.  q.  t.  are  infants,  432. 
qu.  as  to  cs.  q.  t.  abroad,  432  ; 

see  453. 

(2)  By  special  trust  annexed   to 

purchase  money, 
e.  g.  trust  for  investment,  433  : 
and  see  523. 
to  pay  debts,  434;  debts  and 
legacies,  435. 
secus  where  for  particular  debts, 

435. 
or  legacies  only,  ib. ;  as  to  lega- 
cies not  yet  payable,  see  430. 
Exceptions,  purchaser  is  not  in- 
demnified (1)  where  collusion: 

(2)  after  institution  of  suit ;  or  _ 

(3)  where  notice  of  intended  mis- " 
application,  436,  and  see  331, 
458  ;  (4)  where  sale  not  justified, 
428. 

Purchaser  discharged  by  receipts  of 

executors;  see  Executors,  s,w\). 
when  by  receipts  of  trustees,  430  ; 

see  Power  of  giving,  sup.,  and 

428. 
practical  directions  where  several 

purchasers  and  no  power  to  give 

receipts,  451. 
principle  of  requiring  him  to  see 


796 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


RECEIPTS,  continued. 

to  application,  430 ;  new  prin- 
ciple suggested,  452. 
Time,  purchaser  from  administrator 
or  executor  after  lapsed,  458. 
from  trustee  after  lapse  of,  436. 
power  of  signing  receipt  a  ques- 
tion of  intention  at  date  of  deed 
or  of  testator's  death,  and  not 
altered   by  subsequent  events, 
436,  437. 
Trustees ;  see  Charge  of  Debts,  Power 
of  giving,  sup. 
appointed  by  court,  their  power  to 

give,  450. 
assignee  of,  whether  he  can  give 

receipts,  449. 
breach  of  trust  after,  whether  their 
receipts  are  good,  450. 
who  intend,  id.,  331,  436. 
receipts,  they  retain  the  vouchers 

for,  428. 
sale,  should  see  that  it  is  justified, 

428,  430  ;  see  Sale. 
where  no  money  passes  to  trustee, 

451. 
whether  they  must  actually  receive 
purchase  money,  451  ;  see  330, 
422. 
Varying  securities,  power  of,  whether 
it  implies  power  to  give  receipts, 
523. 
RECEIVE, 

rents,  whether  trust  to,  identical  with 

trust  for  possession,  588. 
trust  money,  how   trustees   should, 
296,  330. 
RECEIVER, 

Appointed  by  court, 

at  instance  of  all  cs.  q.  t.,  but  usual 

recognizances  necessary,  869. 
at  instance  of  individual  c.  q.  t., 
870. 
where   trust   estate    in   danger 
from  circumstances,  or  con- 
duct  of  trustees,  or   unpro- 
tected, 870  ;  see  871,  note  [I). 
where  executor   drunken,   &c., 

and  in  great  poverty,  870. 
executrix  feme  covert,  and  hus- 
band abroad,  ib. 
tenant  forlife  of  renewable  lease- 
holds refuses  to  renew,  402, 
722. 
trustee  of  bankrupt  or  insolvent 
guilty  of  misconduct,  waste, 
&c.orincapable  of  acting,  870. 
where  all  trustees  disagree  or 
are  abroad,  ib. 
not  appointed  on  slight  grounds, 
870,  871. 


e.  g.  where  one  co-trustee  abroad 
has  disclaimed,  or  is  inactive,  % 

870.  _  \ 

not  generally  discharged  at  mere  | 

instance  of  party  procuring         | 
appointment,  871. 
exception  where  new  trustees, 
ib. 
Direction  to  employ  A.  as,  with  pro- 
per salary,  constitutes  a  trust, 
101. 
secus  as  to  mere  recommendation, 
102. 
Infant  cannot  be  appointed,  36. 
Interest,  he  will  be  charged  with,  for 

improper  retainer,  359. 
Salary,  case   of  receiver   appointed 

without,  590. 
Time  or  trouble,  he  cannot  charge 

for,  546. 
Trustee  cannot  be  appointed  at  a 
salary  unless  mere  trustee  to  pre- 
serve, (fcc,  314. 
RECITAL, 

Declaration  of  trust,  it  may  prove,  63. 

False,  effect  of,  875. 

Notice   by  recital   of  surrender   of 

former  lease,  224. 
Trustee  executing  trust  deed  should 
see  that  recitals  are  correct,  238. 
RECOMMEND, 

may  raise  implied  trust,  168,  but  see 
102,  172. 
RECONVEYANCE.     See  Mortgage. 
RECOUP, 

right   of   trustee   to,   after  making 
over-payment,  373. 
RECOVERY, 

Equitable  entail,  its  effect  on,  601, 

et  seq. 

howit  musthave  been  suffered, 604 . 

Infant  tenant  in  tail  conveyed  by, 

under  Trustee  Enabling  Acts,  835, 

note  (?0- 

Infant,  of,  formerly  only  reversible 

during  nonage,  26. 
Lunatic  or  idiot,  of,  formerly  valid 

unless  reversed,  27. 
Trustees  to  preserve  when  they  could 

have  prevented,  404. 
Vacation,  could  not  be  suffered  in, 
819. 
RECTIFYING, 

settlement :  see  Settlement. 
REDEMPTION  OF  LAND  TAX, 
of  lunatic's  estate,  may  be  effected 
from  proceeds  of  timber,  827. 
REDUCTION, 

into  possession  of  feme  covert's 
chose  in  action,  26,  370,  627,  628, 
631. 


INDEX. 


•9' 


REDUCTION,  continued. 

not  where  reversionary,  370,  et  seq., 

628. 
into   possession   of  trust  estate,  c. 
xiii.  s.  1,  p.  326  5  and  see  Livest- 
ment  (Duties). 
REFERENCE, 

words  of,  creation  of  trusts  by,  167. 
creation ofpovvers  by,  433,  note  (6). 
REFUSAL, 

of  trustees  to  act,  710  ;  and  see  543, 

696. 
to  convey  or  transfer,  at  request  of 

c.  q.  t.,  595,  600. 
how  remedied  under  Lord  St.  Leo- 
nards' Trustee  Act,  837,  see  note 
(a)  ;  838,  see  note  (/). 
how  under  Trustee  Acts  ;  see  Trus- 
tee Acts. 
REGISTRY, 

Acts,  as  to  register,  counties,  672 ; 

ships,  203. 
Decrees,  judgments,  «&c.,of,  667,668, 
note  (e) ;  669. 
REIMBURSEMENT, 

of  trustees'  expenses,  521 ;  and  see 
c.  XX.  s.  2,  p.  557  ;  Exjjenses,  and 
873. 
RELATIONS, 

Bequest  to  poor  relations,  how  con- 
strued, 698,  note  (1). 
Power  in  favour  of,  how  to  be  exe- 
cuted by  donee,  705 ;  see  542. 
on   failure  of  trustees   by  court, 
706  ;  see  Poioers  (Imperative). 
Trust  for,  how  construed,  170. 
Trustees  whether  they  should  grant 
leases  to,  505. 
undesirable  to  have  relations  as 
trustees,  40  ;  but  see  789. 
RELATORS, 

necessary  in  information  on  account 
of  costs,  779. 
RELEASE, 

Breach  of  trust  from,  by  c.  q.  t.,  re- 
quisites of,  777,  778. 
by  feme  covert  or  infant,  777. 
C.  q.  t.,  by,  in  ignorance  of  his  rights, 

224. 
Co-trustee,  of  one,  discharges   ano- 
ther, 773  ;  secus  as  to  bond  not 
to  sue,  ib.;  comp.,  854. 
Consideration,    what   sufficient   for, 

737. 
Creditor  of,  by  accepting  composi- 
tion, 486. 
Debts,  whether  trustee  may  release, 

520. 
Equity   of  redemption  of  no  value, 
whether  trustee  may  release,  521. 
Mortgage  security,  release  of  part, 


whether  trustees  may  make,  521. 
Principal,  of,  discharges  accessory, 

777. 
Seal  under,  its  effect,  and  whether 

trustee  may  require,  373. 
Trust  from,  how  trustee  can  obtain, 

289.     See  Relinqiiishment. 
Trustee  paying  under  direction   of 
court  not  entitled  to,  375. 
whether  trustees  on  payment  to 

trustees  can  require,  374. 
expense  of  release  to  trustees  and 
by  whom  prepared,  375. 
RELIEF.     See  Trustee  Relief  Ads. 
RELIGION, 

Established,    when    court   executes 
trust  in  favour  of,  497. 
RELINQUISHMENT, 

of  trust  by  trustee,  how  effected, 
c.  XXI.  p.  565. 
(«)  Consent,  by,  of  all  cs.  q.  t.  if  sui 

juris  and  in  esse,  565,  566. 
(6)    Court,  by  application   to,  582, 
and  see  584. 
by  representative  of  deceased 
trustee,  584. 
where  no  new  trustee  can  be  found, 

582. 
application,  how  made  and  costs 

of,  583. 
when  new  trustee  appointed  on 
petition  under  Bankruptcy  Act, 
714;   Lord  St.  Leonards'  Trus- 
tee Act,  713,  834;  Trustee  Acts, 
714;  see  Trustee  Acts ;  and  s. 
36  of  Trustee  Act. 
(c)  Power  by  virtue  of  a,  566  ;  see 
New  trustees. 
REMAINDERMAN, 

Election,  how  far  he  is  capable  of, 

818 ;  see  Election. 
Equity  of  redemption  of,  when  time 

runs  against,  733. 
Limitations,  Stat,  of,  whether  s.  25 
abridges  rights  of  e.  q.  t.  in  re- 
mainder, 722,  see  note  (?•)  ;  745  ; 
as  to  receiver  of  renewable  lease- 
holds, 402,  722. 
Remedies  of  bill  to  have  number  of 
trustees  filled  up,  710,  and  comp. 
368,  723,  733,  868. 
Renewable  leaseholds  of,  fines  ap- 
portioned between  him  and  te- 
nant for  life,  305. 
laches  not  imputable  to  him  dur- 
ing life  of  tenant  for  life,  402. 
Trustee  must  not  favour  tenant  for 
life  at  expense  of,  339,  344,  348, 
415,  418,  421. 
REMAINDERS,       CONTINGENT. 
See  Continrjcnt  Eemainders. 


798 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


REMEDY, 

c.  q.  t.,  of,  is  in  chancery,  19. 

not  in  common  law  court  for  breach 

of  implied  contract,  20. 
nor  in  spiritual  court,  ib. 
for  breach  of  trust,  see  Breach,  of 
trust  (remedy). 
Trustee  of  (where  breach  of  trust), 
against   (1)   c.  q.  t.,  353,  392, 
TGS,  771,  846;    (2)  co-trustee, 
317,  767,   768,   845;    and   see 
309. 
where  construction  of  trust  doubt- 
ful, 367,  368,  and  375,  et  seq.; 
see  Trustee  Relief  Act. 
REMOVAL    OF   TRUSTEES,  710, 

711. 
RENEWABLE  LEASEHOLDS, 
C.  XIV.   p.  383 ;    see    Constructive 

trusts. 
Accumulations  for  renewal,  who  en- 
titled to  when  renewal  cannot  be 
obtained,  392. 
Copyholds  vested  in  trustee,  admis- 
sion fines  how  raised,  402,  403. 
Fines  for  renewal,  whether  out  of 
annual  rents  or  by  mortgage, 
(a)  where  fund  pointed  out  by 

settlor,  386,  et  seq. 
as  to  leaseholds  for  years :  how 
to  be  raised  "  out  of  rents  and 
profits,"  386  ;  "  out  of  rents 
and  profits  or  by  mortgage," 
387,  388. 
as  to  leaseholds  for  lives :  whe- 
ther to  be  raised  out  of  annual 
rents  and  profits,  388,  et  seq., 
and  see  391  ;  payable  out  of 
insurance   may  be   adopted, 
391. 
(&)  where  no  direction  by  set- 
tlor, 393,  et  seq. 
fine  may  be  raised  by  tenant  for 
life   and    remainderman,   or 
one   of  them,  393  ;    if  they 
refuse,  how  far  mortgage  by 
trustee  is  feasible,  semble  ap- 
plication to  the  court  neces- 
sary, ib. ;  see  note  (r). 
apportionment  of  fines  (if  neces- 
sary), how  made,  395,  et  seq. 
tenant  for  life  and  remainder- 
man   pay   in   proportion    to 
their  actual  enjoyment,  397; 
see  387,  391,  400. 
court  will  not  act  on  speculative 
calculations,   395 ;    but    see 
case  in  same  page, 
proportion,  how  ascertained  as  to 
leaseholds  for  years,  397. 
compound  interest  allowed  te- 


nant for  life  on   his   share, 
and  for  what  period,  ib. 
tenant  for  life  having  had  no 
enjoyment  does  not  pay,  398. 
how  ascertained  as  to  leaseholds 
for  lives,  398,  399,  and  see 
400  and  394. 
contribution,   how   secured,   398, 
400,  402. 
if  made  by  tenant  for  life  he  has 

a  lien,  400,  and  see  398. 
if  made  out  of  trust  fund  or  by 
remaindermen,  tenant  for  life 
gives  security,  402  ;  see  398, 
400. 
■when  by  appointment  of  receiv- 
er, 402,  722  ;  or  sequestration 
of  rents,  402. 
but  suit  for  compensation  can- 
not be  instituted  till  death  of 
tenant  for  life,  402  ;  until  then 
remainderman  not  guilty  of 
laches,  ib. 
Liability  of  trustees  and  tenant  for 
life  for  neglect  to  renew,  392  ;  see 
769,  et  seq. 
Obligation  to  renew,  383,  et  seq. 
obligation  not  necessarily  imposed 
where  successive  estates  limited 
but  no  trustee,  383. 
implied  in  articles  for  settlement, 

385,  386. 
whether  implied  by  interposition 
of  trustee,  384,  and  see  note  (Z). 
whether  implied  in  marriage  set- 
tlement, 385. 
discretionary  renewals,   construc- 
tion of,  "it  shall  be  lawful  for 
trustees  to  renew,"  &c.,  386. 
Person   renewing  when  a  construc- 
tive trustee,  218. 
Tenant  for  life  entitled  to  fines  paid 
by  under-lessees,  392. 
when  regarded  as  a  trustee,  402. 
RENEWAL  OF  LEASES.     See  Re- 
ncicable  Leaseholds. 
Lunatic,  leases  of,  may  be  made  out 

of  his  personal  estate,  828. 
Right  of,  trustee,  &c.,  cannot  sell, 
220. 
RENT.     See  Mesne  Rents,  Renewable 
Leaseholds. 
Arrears  of,  what  recoverable  under 

Statute  of  Limitations,  744,  748. 
Charity  estate  of,  increasing  surplus 

how  applied,  198. 
Grantee  of,  dying  without  heirs,  rent 

sinks  into  land,  321. 
Rack,  505. 

*'  Raised,  not  to  be,"  construction  of 
as  to  charities,  506. 


INDEX. 


199 


RENUNCIATION.    See  Acceptance, 
Disclaimer,  Executor. 
of  the  trust  not  permitted  after  accept- 
ance, 289. 
REPAIRS.     See  Expenses. 
Allowances  for,  when  made  by  trus- 
tees, 513  ;  upon  setting  aside  pur- 
chases by  trustees  for  sale,  466. 
Infant's   lands,  upon,  may  be  made 
out  of  his  personalty,  830. 
so  as  to  lunatic,  827. 
Tenant  for  life,  by,  514. 
Trust  for,  a  special  trust,  247  ;  and 
see  Legal  Estate. 
repairing  chapel,  496,  see  501. 
REPUTED  OWNERSHIP, 
of  chattels  ;  see  Order  and  Disposi- 
tion. 
REQUEST, 

Order   of  court   not  considered   as 
"request"  of  party,  839,  note  (</). 
Power  of  sale  at  request,  540. 
Purchase  to  be  made  at,  807 ;  sale 
at  419. 
"  REQUESTING." 

may  raise  a  ti-ust,  167. 
REQUIRED, 

to  lend,  339 ;  to  purchase,  349,  and 
see  542. 
RE-SALE, 

of  property  purchased  by  trustees  for 
sale,  upon    what   terms   oi'dered, 
467  ;  see  465,  Sale. 
RESIDUARY, 

Bequest  passes  proceeds  of  lands, 
subject  to  trust  for  conversion, 
807. 
will  •  not   pass   resulting  trust  of 

proceeds  of  sale  of  lands,  195. 
unless  such  proceeds  directed  to 
be  taken  as  personal  estate,  196, 
197. 
where   it   passes   void    or  lapsed 
legacy  out  of  land  directed  to 
be  sold,  196. 
passes,  accumulation  void  under 
Thellusson  Act,  118. 
Devise,  whether  it  passes  resulting 
trusts  in  real  estate,  195  ;  accumu- 
lation void  under  Thellusson  Act, 
118. 
"Executor,"  195. 

Legatee,  distinction  between  claim 
of  and  of  next  of  kin  to  undis- 
posed proceeds  of  sale  of  land, 
197  ;  and  see  184. 
takes  under  present  law  in  case  of 
bequest  with  insufficient  decla- 
ration of  trust,  68. 
"RESIDUE,"  195;   within  "legacy" 
in  s.  40  of  late  Limitation  Act,  744, 


note  (ic). 
RESTRAINING  ORDER, 

under  5  Vict.  c.  5,  s.  4 ;  see  Distrin- 
gas, 860,  863. 
RESTRAINT, 

against  alienation,  132. 
against  anticipation ;  see  Feme  Co- 
vert. 
RESULTING  TRUST,  c.  viii.  p.  176. 
On  Disposition  of  Legal  but  not  of 

Equitable  Liter  est. 
Arises  [a)  by  expression  of  intention. 
e.  g.  on  conveyance,  grant,  or  be- 
quest "  upon  trust"  where  trust 
is  not  declared  vague  or  fails, 
181;  see  118. 
parol  evidence  inadmissible  to  re- 
but, 182. 
(&)  by  presumption  ;   see  Implica- 
tion, infra, 
whether    on   voluntary   grant   of 
whole  estate  to  stranger,  177; 
see  note  [d). 
conveyance  to  wife  or  son  ;  an  ad- 
vancement, ib. 
case  of  mistake  or  fraud,  transfer 
of  stock,  or  delivery  of  money, 
178. 
conveyance,    devise,   or    bequest 
where  trust  declared  of  part  of 
estate,  179  ;  see  charge,  infra, 
devisee  or  legatee,  effect  of  rela- 
tionship,  180  ;  not  necessarilv 
excluded  from  beneficial  gift  by 
use  of  "trust,"  "trustee,"  ib. 
parol  evidence  admissible  to  rebut, 
181  I  see  178. 
Charge  distinguished  from  exception 
out  of  devise,  191 ;  from  partial 
trust,  179. 
of  debts  on  devise  to  A.,  no  result- 
ing trust,  179." 
of  legacy  for  charity,  192,  et  seq. : 
contingent  or  which  fails,  190. 
of  sum  to  be  appointed,  and  no 

appointment,  190. 
"subject  thereto,"  effect  of,  191; 
when  implied,  ib. 
Charities,  in  gifts  to,  198  ;  legacy  for, 

192;  see  Charities. 
Failure  of  c.  q.  t.  by,  197. 
Heir,    176,   184;    see   Heir,   Land, 

Money,  infra. 
Implication,  Mdien  partial  trust  raised 

by,  surplus  does  not  result,  173. 
Land  devised  on  trust  for  sale,  un- 
disposed of  proceeds  result  to 
heir,  182. 
notwithstanding  direction  that 
proceeds  shall  be  considered 
personalty,  or  that  nothing  shall 


800 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


RESULTING  TRUST,  contmued. 

result  to  heir,   182,   183,  note 
(o)  ;  or  bleudino^  of  realty  and 
personalty,  183,  but  see  196. 
whether  as  realty  or  personalty, 

184;  and  see  118,  177.  _ 
'  secus  if  resulting  interest  disposed 
of,  what  disposition  sufl&cient, 
194,  et  seq. ;  see  197. 
effect  of  blending  realty  and  per- 
sonalty: "personal  estate,"  196; 
"  residue,"    "  residuary   execu- 
tor," 195  ;  and  see  184. 
Money  to  be  laid  out  on  land,  undis- 
posed of  interest  results  to  execu- 
tor for  next  of  kin,  187. 
Parol  evidence,  when  it  may  rebut 
resulting  trust,  181,  182  ;  see  178. 
Personal  estate  of  for  next  of  kin, 
effects  of  residuary  bequest,  197. 
Purchase  in  cases  of: 
{a)  Purchase  in  name  of  stranger 
generally  constitutes   resulting 
trust,  199. 
so  on  a  joint  purchase  in  name  of 

stranger,  199,  201. 
so  tenancy  in  common  is  implied 
in   case  of  joiut  loan,  201  ;  or 
where  two,  possessed  of  mort- 
gage term,  purchase  equity  of 
redemption,  202. 
in  joint  purchase  where  purchasers 
contribute  unequally,  202  ;    or 
in  joint  undertaking  in  trade,  ib. 
but  where  contribution  is  equal, 
joint  tenancy  is  implied,  201  ; 
and  see  Joint  Tenanci/. 
how  far  rule  applies  in  purchase  of 
copyholds   for  lives,   202  ;  and 
as  to  personalty,  200. 
rule  does  not  apply  to  advance  by 
A.  not  in 'the  character  of  pur- 
chaser, 200. 
nor  to  purchase  in  contravention 
of  Papistry  Acts,  of  ship,  or  for 
giving  votes,  203. 
Laches,  resulting  trust  may  be  re- 
butted by,  207. 
Parol,    purchase    is    provable    by, 
though  otherwise  expressed  in  pur- 
chase deed,  204  ;  or  against  de- 
fendant's denial,  205,  note  (/'). 
or  after  death  of  nominal  pur- 
chaser, semble,  206. 
but  evidence  must  be  clear,  205  ; 
and  see  Frauds,  Stat.  of. 
secus  where   purchase   by  agent 
and  no  money  paid  bv employ- 
er, 204. 
resultine  trust  mav  be  rebutted 
by,  206. 


subsequent  declaration,  effect  of, 
207. 
(6)  Purchase  by  father  in  name  of 
child,  &c.,  implies  advancement, 
not  resulting  trust,  207,  et  seq. ; 
see  Advancement. 
RETAINER, 

of  trust  funds  by  assignees,  359;  exe- 
cutors, 358,  875,   876  ;    receiver, 
359  ;  trustees,  358  ;  of  charities, 
502. 
RETIREMENT, 

of  trustee  from  the  office ;  see  New 
Trustees,  Relinquishment. 
REVERSION, 

Laches,  effect  of,  in  suit  to  set  aside 

purchase  of,  742. 
Mortgage  of,  350. 

Renewable  Leaseholds  of,  how  far 
trustee  purchasing  is  a  construc- 
tive trustee,  225. 
REVOCABLE, 

trusts,  25,  101,481;  see  Debts,  na- 
ture of,  483. 
ROBBERY, 

of  trust  property,  332. 
ROMILLY'S  ACT,  779,  et  seq. 
RULE  OF  COURT, 

when  with  1  &  2  Vict.  c.  110,  s.  18, 
667,  note  (c). 

SALE.     See  Abroad,  Purchaser,  Re- 
ceipts, Specific  Performance,  Vol- 
uutary    Settlement,  Trustee  Acts 
(petition). 
Charity  lands,  of,  503,  504, 515,  782, 

note  («'). 
Contract   for,  raises  implied   trust, 

174. 
Decree  for,  person  to  convey  under 
a  constructive  trustee,  839,  note 
(/)  ;  comp.  Trustee  Act,  ss.  29, 
30  ;  Extension  Act,  5,  2. 
Devise  upon  trust  to  sell  passes  the 

fee,  250  ;  see  247. 
Direction  for  in  will  raises  a  trust, 

173. 
Power   of;  see  Executors  (power). 
Mortgage. 
implied  where   by   charge,    251  ; 

see  257. 
personal  estate  on  deficiency  of, 

428. 
partition  is  not  authorized  by,  qu. 
whether  by  power  to  sell  and 
exchange,  417. 
usual  in  settlement,  effect  of,  417, 
see  421  ;    whether   exercisable 
unless    trustees    have    another 
purchaser  in  view,  418. 
Trust  for,  whethera  ministerial  trust. 


I 


INDEX. 


801 


SALE,  continued. 

21;  survivorship  of,  419;   see 
Sale^  Trustees  for. 
to  mortgage,  does  not  authorize  a 
sale,  417. 
SALE,  TRUSTEES  FOR.    See  Mort- 
gagee; Sale,  Trust  for;    Thnber. 
Generally, 
Attested   copies,    when    they   must 

give,  425. 
Conveyance  by,  concurrence  of  cs. 
q.  t.  where  necessary,  427  ;  cove- 
nants, what,  trustees   must  enter 
into,-425,  note  (A:)  ;  for  production, 
425  ;  of  indemnity  on  sale  of  lease- 
holds, 426  ;   grant,  effect  of,  424, 
note  (^)  ;  see  596,  note  (r)  ;  pow- 
er of  attorney,  form  of,  on  assign- 
ment of  choses  in  action,  427. 
Court,  trustees  may  sell  without  ap- 
plying to  ;  secus  where  suit  pend- 
ing, 414,  429. 
Discretion  of  trustees  sale  at,  pur- 
chaser cannot  question  its  exer- 
cise, 417. 
Duties  of:  should  sell  to   greatest 
advantage  of  all  cs.  q.  t.  impar- 
tially, 414,  and  see  418. 
should  not  delegate  the  trust,  422  ; 
see   415;   and  see  Court,  sn\>., 
Preliminaries,  Quantity,  Time. 
inf. 
Mode  of  conducting  sale,  agents,  by, 
422  ;   auction  or  private  contract, 
by,  ib. ;    buying  in,  conditions  of 
sale,  as  to,  423  ;  lots,  ti-ustees  may 
sell  in,   423 ;  possession   to   pur- 
chaser, when  to  be  given,  424,  see 
871  ;  receipt  of  purchase  money, 
422 ;  see  Receipts  ;  and  Prelimina- 
ries, Quantity,  inf. 
Pei'sonal  estate,  trust  for  sale  on  its 

insufficiency  for  debts,  428. 
Powers  of:    leases   they   may   not 
grant,   416,   and   see  462  ;  mort- 
gage,  whether   they   may   make, 
416,417;   a,ndi  s,&Q  Receipts ;   and 
Quantity,  infra. 
Preliminaries  :  advertisements,  if  by 
auction,   422  ;    title  should  be  in- 
vestigated before  sale,  421  ;  value 
of  property  should  be  ascertained, 
ib. 
Quantity,  whether  trustees  may  sell 

larger  than  trust  requires,  429. 
Request,  sale  at,   &c.,  how  it  must 

be  testified,  419. 
Specific  j^erformance,  costs  of,  421, 
872 ;    not  enforced   if   involving- 
breach    of   trust,   415  ;    whether 
when  involving  hardship,  424. 


Time  for  sale  :  reasonable  time  al- 
lowed, 415  ;   trust  to  sell  with 
"  all  convenient  speed,"  415,  see 
527  ;  "  after  death  of  A.,"  419  ; 
within  limited  period,  416. 
where  legacies  not  yet  raisable 
are  charged,   430  ;  where  por- 
tions are  raisable,  420,  430. 
Their  disability  to  purchase  jjroperty, 
c.  XVI.  s.  3,  p.  460  ;  and  see  Lease, 
[a)  Rule  applies  to  purchase  from 
trustee,  or  co-trustee,  461  ;  even 
by  means  of  agent,  or  as  agent 
for  another,  462  ;  at  auction  or 
private  contract,  461 ;  however 
fair    the    transaction,    ib. ;    in 
name  of  trustee  or  another,  ib. ; 
and  whatever  the  trust  property, 
460. 
applies  to  assignees,  administra- 
tors, executors,  receivers,  &c., 
465. 
does   not   apply  to    execution 
creditor   on   sale  by  sheriff, 
nor  to  mortgagee,  465  ;  nor 
to  trustee  who  has  disclaim- 
ed, 462. 
whether  to  trustee  without  active 
duties,  460. 
(&)  But  trustee  may  purchase  from 
c.  q.  t.,  if  relation  of  trustee  and 
c.  q.  t.  dissolved,  and  no  con- 
cealment, 463. 
cases   where   purchase   sustained 
from  conduct  of  c.  q.  t.,  464 ; 
whether  c.  q.  t.'s  solicitor  can 
authorize  purchase,  ib. 
cs.   q.   t.,    creditors,    whether   all 

must  sanction  purchase,  ib. 
cs.  q.  t.,  sui  juris,    court  cannot 
authorize  trustee  to  bid ;  secus 
where  cs.  q.  t."are  infants,  465. 
(c)  Confirmation  of  purchase,  471, 
et  seq.  ;  requisites  of,    472;  con- 
sideration, it  does  not  require,  ib. 
(c?)  Laches,  when   a  bar  to  relief, 
470,  see  742  ;  in   cases  of  class 
(as  creditors,)  feme  covert,  in- 
fant, 471. 
no  laches  in  case   of  ignorance, 
471  ;  whether  in   case   of  dis- 
tress, ib. 
(e)  Terms   on  which    purchase   set 
aside,  466. 
1.  c.  cj.  t.  may  pray  reconveyance 
on  payment  of  purchase  mo- 
ney and   interest   at  4Z.  per 
cent.,  466. 
trustee  accounts  for  rents  (with- 
out interest,)  compensates  for 
deteriorations,  but  allowed  for 


802 


LEWIN    ON    THE    LAW    OF    TRUSTS,    ETC. 


SALE,  TRUSTEES  FOR,  continued. 
repairs  and  (unless  where  fraud) 
lasting  improvements,  466. 
trustee  paying  money  into  court 
not  entitled  to  rise  in  stock,  467. 
re-conveyance  when  ordered,  467  ; 
without  prejudice  to  bona  fide 
lessees,  &c.,  ib. 
2.  c.  q.  t.  (even  a  single  creditor) 
may  pray  re-sale,  467,  469. 
trustee,  where  no  advance,  held 
to  his  purchase,  468. 
how   allowed  for   repairs  and 
improvements,  ib. 
whether  re-sale  in  lots  can  be 
required,  ib. 
c.  q.  t.,  remedy  of,  in  case  ofshares, 
469. 
against     subsequent    purcha- 
sers, ib. 
costs   follow  decree,   ib. ;  not 
where  plaintiff'  guilty  of  de- 
lay, 470. 
[f)  Time  within  which  relief  must 
be  sought,  470  ;  see  Laches,  sup. 
SALE  AND  EXCHANGE,  Power  of. 
whether  authorized  by  "  usual  pow- 
ers" in  executory  trusts,  164;  un- 
der covenant  to  settle  realty  simi- 
larly to  stock  where  power  of  vary- 
ing securities,  167. 
whether  it  authorizes  partition,  417. 
whether  it  implies  power  to  give  re- 
ceipts, 433,  note  [u), 
SCANDAL, 

statement  of  trustee's  misconduct  is 
not,  711. 
SCHOOL, 

chapel  for,  496. 

"free   grammar   and   free   school," 

499,  et  seq. 
trust  for  poor   applied   for   school- 
house,  &c.,  501. 
SCIRE  FACIAS,  663. 
SCOTLAND, 

Equities  in  respect  of  lands  in,  ad- 
ministered here,  48 ;    but  see  53 
and  Jurisdiction, 
Executors  here  not  bound  to  know 

the  law  of,  367. 
Thellusson  act,  Scotland  is  excepted 
from,  120. 
SECRET  TRUSTS, 

discovery  of,  where  enforced,  70,  72, 

73  ;  see  Devisee  ;  Heir. 
as  to,  under  deed  enrolled  under  9 
Geo;  2,  c.  36,  132. 
SECURITIES, 

For  money,  gift  of  in  wiU  may  pass 

mortgage  in  fee,  264. 
Negotiable,  where  they  may  be  fol- 


lowed, 275,  759. 
SECURITY.     See  Investment. 

Agent,   trustee  not  called   upon  to 

require  from,  295. 
Tenant  for  life  of  renewable  lease- 
holds, what   he  gives  where  fine 
paid  by  remainderman,  398,  400, 
402. 
Trustee  required  to  give  for  due  exe- 
cution of  trust,  723. 
Vary,  power  to,  523  ;  a  "usual  pow- 
er," 164. 
SEISIN, 

Infants  of,  ex  parte  maternO,  of.lease- 
holds  may  be  changed  to  seisin  ex 
parte  paterna,  831. 
Ex  parte  maternfi,  680. 
Equitable,   617;   what  required   to 

give  curtesy,  617,  622,  623. 
possessio  fratris  of  a  trust,  618,  and 
see  note  (e). 
SELECTION, 
power  of,   22,   542,  701,  705,  706, 
note  {n). 
SEPARATE  USE.   See  Feme  Covert. 
SEQUESTRATION, 

of  rents  ordered   where  tenant   for 
life  of  renewable  leasehold  refuses 
to  renew,  402,  722. 
SET-OFF.     See  334. 

where  bankrupt  trustee  (indebted  to 
trust)  has  beneficial  interest,  772  ; 
conf.  771. 
SETTLED, 

account    opening   against    solicitor 
trustee,  550. 
SETTLEMENT, 

Equity  to.     See  Feme  Covert. 
Executory  trust,  what  directed  under. 

See  Executory  tnists. 
Postnuptial,  executory  trusts  in,  con- 
strued as  in  wills,  164. 
Of  realty,  usual  frame  of  404. 
eff"ect  of  usual  power  of  sale  in,  417. 
re-settlement  of  estate,  409. 
object  of  limitation  to  trustees  to 
preserve  in  404,  405. 
Rectification  of,  how  far  by  means 
of  articles,  148. 
not  when  settlement  executed  prior 

to  marriage,  148. 
unless  stated  to  be  made  in  pur- 
suance of  articles,  or  where  mis- 
take, 148. 
semble   not  against  a  purchaser, 
148,  note  {y). 
Separate  use  of  feme  covert  for  ;  see 

Feme  Covert. 
Voluntary,  of  lands  or  chattels  real 
(butnot  of  personalty),  defeated 
by  subsequent  sale  by  settlor,  92. 


INDEX. 


803 


SETTLEMENT,  continued. 

of  any  property  void  as  against 

creditors,  if  settlor  indebted  at 

the    time,  93 ;    see    Voluntary 

Settlement. 

SETTLOR, 

Legal  estate  becoming  re-vested  in, 

will  not  defeat  trust,  99. 
Whether  he    can  claim   benefit  on 

failure  of  c.  q.  t.  323. 
Who  may  be,  c.  in.  s.  1,  p.  24.  See 
also  Alien,  Bankrupt,  Crown, 
Corporation,  Feme  Covert,  Hus- 
band, Infant,  Insolvent,  Lunatic; 
and  as  to  Felon,  Outlaio,  Traitor, 
see  28. 
SEVERANCE, 

of  trusteeship,  579  ;  of  estate  from 
powers,  535. 
SHARE, 
aliquot,  payment  of  into  court  some- 
times ordered,  865. 
c.  q.  t.,  of  suing,  who  should  be  par- 
ties, 850  :  see  856. 
SHARES, 

Charging  order  under  1  &  2  Vict.  c. 

110,  its  effect,  669. 
Companies,  in  restraining  order  un- 
der 5  Vict.  c.  5,  s.  4,  applicable 
to,  860,  863. 
in  canal,  insurance,  railway  com- 
panies, &c.,  when  to  be  convert- 
ed, 812. 
Purchase  of,  by  trustee,  469. 
SHELLEY'S  CASE, 

rule  in,  applicable  to  trusts  executed, 
142.     See  Executory  trusts  (heir 
of  body). 
SHIP, 

no  resulting  trust  on  purchase  of,  in 

stranger's  name,  203. 
registry  acts  do  not  apply  to  trans- 
fers by  mere  operation  of  law,  203. 
SICILY.     See  Jurisdiction. 

whether  trusts  of  laud  in,  can  be  en- 
forced here,  54. 
SIGNATURE, 

required  for  delegation  of  trust,  64 ; 
by  whom,  65. 
SIMONY, 

direction  to  purchase  next  presenta- 
tion in  favour  of  person  a  designata 
falls  within,  136. 
SIMPLE  CONTRACT  DEBTS.  See 
Breach  of  trust. 
Lands  of  trustee  trading,  liable  to 

under  Sir  S.  Romilly's  Act,  273. 
Money  to  be  converted  into  land  was 

not  formerly  liable  to,  796. 
Real  assets   they  are    now  payable 
out  of,  239,  273,  note  (Z),  285,  435. 


as  to  devise  for  payment  of  debts, 
see  474. 
Trusts  for,  debts,  how  paid  under, 
484,    488;    and  see    843,  and 
Debts. 
interest  on,  not  allowed,  489  ;  but 
see  490,  note  (g). 
SIMPLE  INTEREST, 

usually  charged  for  improper  retain- 
er of  trust  money,  359,  361. 
SIMPLE  TRUST.    See  Special  trust. 
explained,  2,  21. 

in  what  the  c.  q.  t.'s  estate  consists, 
c.  xxii.  s.  1,  p.  585. 
SOLICITOR, 

Breach  of  trust,  if  he  wilfully  advi- 
ses or  concurs  he  may  be  struck 
off  the  Roll,  763,  note  (s). 
effect  of,  in  negotiating  loans,  &c., 
358. 
Borrower  of,  undesirable  for  lender 

to  employ,  358. 
c.  q.  t.  of,  whether  he  can  author- 
ize trustee  to  purchase,  464. 
Constructive  trustee,  case  where  so- 
licitor violating  his  duty  held  to 
be,  226. 
Purchase  in  name  of  son  (a  solici- 
tor), held  not  an  "  advancement" 
from    the    relation    of   solicitor, 
216. 
Security  to  for  professional  charges 

set  aside,  when,  550. 
Settled  account,  containing  profes- 
sional  charges    opened    against, 
550. 
Trustee,  solicitor  of,  has  no  lien  on 
trust  fund,  561  ;  taxation  against 
at  instance  of  e.  q.  t.,  558,  note 
(/),  561,  note  (g). 
Trustee  who  is,  cannot  charge  for 
time  and  trouble,  but  only  for 
costs    out    of    pocket,    unless 
where    special    contract,    320, 
549 ;  as  to  nature  of  contract, 
see  553 ;  rule  same  where  co- 
trustee is  one  of  a  firm,  320, 
549. 
proportion   of   costs    allowed   to 
country  solicitor  (executor)  de- 
fending suit  by  agent,  320  ;  co- 
trustee and  solicitor  acting  in 
a  suit  for  himself  and  co-trus- 
tees, ib. ;  none  allowed  to  single 
trustee  defending  himself  by  his 
partner,  ib.,  and  see  550. 
SOUTH  SEA, 

stock  and  annuities,  341,  note  ip). 
SOVEREIGN.     See  Croion. 

Declaration  of  trust  by  or  to,  25,59, 
Will  of,  as  to  private  property,  25. 


804 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


SPECIAL, 

Case,  3G8. 
Conditions,  423. 

Occupant,  heir  taking  as,  may  dis- 
claim, 232. 
Trust,   nature  of,   4,   21 ;    must  be 
lawful,  599. 
ia  what  c.  q.  t.'s  estate  consists,  c. 

X5II.  s.  2,  597,  et  seq. 
how  converted  into  simple  trust, 

597. 
proceeds  till  countermanded  by  c. 

q.  t.,  598. 
Uses,  Stat,  of,  is  not  within,  24C, 
247. 
SPECIALTY.     See  Breacli  of  trust, 
Simj')le  Contract  Debts. 
heirs  where  bound  by,  238,  239 ;  see 
692,  765. 
SPECIALTY  CREDITOR, 

devise  avoided  against,  239,  474. 
trusts   for    payment   of    debts,   his 
claim  under,  484,  488;  for  interest 
on,  491. 
SPECIE, 

where  presumed  that  leaseholds,  &c., 
though  bequeathed  in  succession, 
are  to  be  enjoyed  in,  809. 
SPECIFIC, 

Bequest,   distinguished  from  direc- 
tion to  enjoy  in  specie,  812  ;  and 
and  see  note  {g). 
Charges  on  realty,  persons  having, 

where  necessary  parties,  843. 
Performance,    costs   of    trustee   in, 
421,  872. 
enforced,  is  not,  against  trustees 
who  have  sold  improperly,  415; 
whether  where  hardship,  424. 
laches  in  suit  for,  effect  of,  742. 
lands  abroad,  as  to,  when  enforced, 

47. 
parties  to  suit  for,  844 ;  and  see 

842. 
person  who  has  made  a  previous 
voluntary  settlement  cannot  en- 
force   against    purchaser,    93 ; 
but  purchaser  may  enforce,  ib. 
Trustees'  Acts,  provision  for  under 
Trustee  Acts,  839,  and  see  894. 
voluntary  contract  of  not  enforced, 
93,  94 ;  and  see  Covenant. 
SPIRITUAL  COURTS, 

have  no  jurisdiction  of  trusts,   19, 
261  ;  and  see  Prohibition. 
SPORTING, 

trustees  not  entitled  to  where  it  can 

be  let,  318. 
qualification  of  c.  q.  t.  for,  under 
old  law,  593. 
STATUTES.     See  Frauds,  Stat,  of; 


Limitations,   Stat,  of;   Wills,  Stat, 
of;    Trustee  Acts ;    Trustee  Belief 
Acts,  and  Index  of  Statutes. 
STATUTE  MERCHANT, 
tenant  by,  bound  by  a  trust,  11. 
lien  of,  689. 
STEWARD, 

of  manor.     See  Infant. 
trustee  appoints  but  must  observe 
direction  of  c.  q.  t.,  269. 
STOCK.     See  Payment  into  Court. 
Charging  order  under  1  &  2  Vict.  c. 

110,  642,  649,  669,  et  seq. 
Co-executors,  transfer  by,  315. 
Creditor,    how     available     to,   see 

Charging  order,  sup. 
Devises  of,  statutes  relating  to,  32, 

note  (1). 
Distringas,   writ   of,  applicable   to, 

860,  et  seq.,  863. 
Dividends,  c.  q.  t.  put  in  possession 

by  power  of  attorney,  594. 
Executors'  assent  to  bequest,  effect 

of,  32,  note  (1). 
Private  company,  trust  money  must 
not  be  invested  upon  stock  of,  341; 
bank  stock,  south  sea  stock,  ib. 
Public  investment  upon,  351  ;  see 
354. 
case  of  trustees  impropei-ly  sell- 
ing out,  356. 
secus  where  power  to  do  so,  344. 
neglect  to  purchase,  764. 
Restraining  order,  under  5  Vict.  c.  5, 
s.  4,  860,  863. 
STOP  ORDER, 

petition  for  on  whom  it  should  be 

served,  614,  note  [1). 
priority  given  by,   613,   614.      See 
Notice. 
STRANGER, 

Advancement  for,  whether  presumed 
when  purchaser  has  placed  him- 
self in  loco  parentis,  216. 
Purchase  in  name  of,  where  it  cre- 
ates  resulting   trust,  see  Pur- 
chase. 
parties  to  suits  respecting  trust  by 
or  against,  841,  et  seq.;  and  see 
Parties. 
SUBPCENA, 
origin  of,  1. 
SUIT.     See  Costs,  Decree,  Parties. 
Barred  by  lapse  of  time,  when  ;  see 

Limitation. 
Collusive,  429. 

Decree  in,  takes  administration  from 
trustee,  414,  429,  436,  523;  and 
see  524,  544. 
Trustee  for  protection  of,  367. 
appeals  at  his  own  risk,  368. 


INDEX. 


805 


SUIT,  continued. 

should  see  that  proper  parties 

are  before  court,  368. 
sustain  rather  than  originate,  ib. 
for  removal  of,  710,  I'll ;  and  see 
582,  et  seq. 
SUPPLYING   WORDS,  in  articles, 

153,  and  see  191,  250. 
SURRENDER.     See  Copyholds,  Cus- 
tomary Freeliolds. 
SURVEYOR,  561. 
SURVIVORSHIP.   See  Feme  Covert, 
Chiardian. 
Administratorship  or  executorship, 
of,  300. 
not  of  bare  power,  299,  536 ;  or 
committeeship  of  lunatic,  299. 
Power  of  sale  of,  in  mortgage,  419. 
Powers  of  trustees,  536.     See  Pow- 
ers. 
Trust  of,  299  ;  even  where  power  to 

appoint  new  trustees,  301. 
Trust  for  sale  of,  300,  419. 

TACKING.     See  Mortgage. 
TAXES.     See  Bates. 
TECHNICAL, 

terms,  how  far  necessary  for  crea- 
tion of  express  trusts,  140. 
their   force   when    employed,    141  ; 
and  see  Executori/  trusts. 
TENANCY    IN     COMMON.      See 
Joint  tenancy. 
Elect,  how  far  tenant  in   common 

can,  818. 
Implied  in  case  of  joint  loan,  201  ; 
or  where  two  possessed  of  mort- 
gage term  purchase  equity  of  re- 
demption, 202  ;  in  joint  purchase, 
where  purchasers  contribute  une- 
qually, 202  ;  or  in  joint  undertak- 
ing in  trade,  202. 
Mortgagee,   tenant    in    common   of 

equity  of  redemption,  733. 
Presumption  of  ouster  between  equi- 
table tenants  in  common,  735,  note 
(1);  but  see  747. 
TENANT  AT  WILL, 
c.  q.  t.  is  to  trustee,  586,  590. 
or  by  suffei-ance  renewal  of  lease  by 
his  executor,  219. 
TENANT  FOR  LIFE, 

Breach    of  trust  reaping  fruits  of, 

how  he  contributes,  768,  et  seq. 

participating  in,  his  interest  may 

be   stopped   for   compensation, 

771. 

Chattels   or    heir-looms   as   to,   his 

rights,  593,  594. 
Conversion  income  accruing  before, 
his    proportion   in,  813.      See 


Conversion  (income), 
having   received    whole    income, 
when  conversion  proper,  liable 
to  refund,  353. 
Costs,  he  l)ears  of  suit  instituted  for 
relinquishment  of  trust  by  trustees 
on  account  of  incumbrances   by 
him,  584. 
Dividends,  how  put  in  possession  of, 

594. 
Feme  covert,  as  regards  equity  to 

settlem'ent  of  wife,  who  is,  370. 
Forfeiture  by,  678. 
Improvements  and  repairs,  514. 
Powers,   whether    having    sold    or 
mortgaged  his  estate,  he  can  ex- 
ercise, appoint  new  trustees,  580. 
Real  estate,  of  his  rights,  586,  et  seq. 
Renewable  leaseholds  of, 

fines  entitled  to   on   underleases, 

392. 
fines,  apportionment  of  between 
prior  remainderman,  and  contri- 
bution, how  secured,  395,  398  ; 
and  see  Reneivable  Leaseholds. 
liability  in  case  of  neglect  to  re- 
new, 392  ;  see  383. 
refusing  to  renew,  402,  722. 
regarded  as  trustee  for   renewal, 

when,  402. 
renewing  is  trustee  for  those  in  re- 
mainder, 218,  384. 
Trust  for  sale,  he  may  buy  under 
though  his  consent  necessary  to 
sale,  462. 
Title  deeds,  whether  entitled  to,  591, 

592,  note  {v). 
Use  of  his  power  under  1  Rich.  3,  c. 
1,  601  note  {/) ;  see  227,  in  pos- 
session. 
Waste  by,  225,  514.     See  Waste. 
TENANT  IN  TAIL.     See  Uses. 
Assignment  q/"  his  equitable  interest, 

601,  et  seq. 
Election  by,  819,  et  seq.;  see  Elec- 
tion. 
Equitable,  he  cannot  require  trustee 

to  convey  legal  fee,  595. 
Forfeit   his   estates,  he   cannot,  by 
disseising   the   remainderman   of 
an  equitable  interest,  560. 
TENANT  TO  PRAECIPE,  412 ;  see 

404.  405  ;  Equitable,  604. 
TENANT  YEARLY,renewal  of  lease 

bv  219. 
TENANT  RIGHT,  225. 
TENDER, 

of  conveyance,  under  Lord  St.  Leo- 
nards' Trustee  Act,  837,  note  (a). 
TERM, 
attendant.     See  Attendant  term. 


806 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


TERROR, 

confirmation  must  not  be  obtaiaed 
by,  473,  778. 
TESTAMENTARY  DISPOSITION. 

See  Will. 
THELLUSSON     ACT,    112,  et   seq. 
See  Ireland,  Scotland. 
Accumulation  can  be  for  one  only 
of  the  periods  allowed  by  sta- 
tute, 113. 
commencing  after  testator's  death, 
must  end  at  21  years  from  such 
death,  113. 
trust  exceeding  limits  is  good  pro 

tanto,  113,  114. 
Act  applies  to  simple  and   com- 
pound accumulation,  and  where 
enjoyment   suspended,   though 
right  vested,  113. 
whether  act  applies  where  accu- 
mulation only  implied  by  instru- 
ment of  trust,  115,  116. 
Exceptions  from  the  act,  and  their 

construction,  119  ;  see  120. 
Excess,  to  whom  it  belongs,  IIG,  et 
seq. 
resulting  for  heir,  when  it  devolves 
as  personalty,  118. 
Subsequent  limitations  not  accele- 
rated, ib. 
Wills  Act,  under,  void  accumulations 
of  realty  go  to  residuary  devisee, 
of  personalty  to  residuary  lega- 
tee, 118;  and  where  residue  is 
settled  form  capital,  ib. 
void  accumulations  from  residue 
itself  result,  if  realty  to  heir,  if 
personalty  to  next  of  kin,  ib. 
TIMBER, 

Account  of,  in  equity  on  legal  title 
without  injunction,  qu.  753,  note. 
On  infant's  estate,  see  Infant. 
On  lunatic's  estate,  see  Limatic. 
Trustees  may  not  buy  wood  estate 
in  favour  of  tenant  for  life,  sans 
waste,  their  power  to  cut,   515; 
■with  power  of  sale,  may  not  sell 
separately  from  estate,  421. 
TIME, 
Bar  from.     See  Laches,  Limitation 

of  Suits. 
Trust  for  sale,  "within  what  it  should 
be  executed,  415 ;  and  see  419, 
420,  429,  436,  458. 
Trustee  not  entitled  to  any  allowance 
for  his  time,  545 ;  and  see  Trouble, 
TITHES, 

account  of,  in  equity  on  legal  title, 
753,  note. 
TITLE, 

power  of  vendor  to  sign  receipt  for 


purchase  money,  a  matter  of,  430. 
trustee  for   sale  bound  to  make  a 
good  title,  421. 
TITLE  DEEDS, 

Custody  of,  who  entitled  to,  where 
legal    estate    in    trustee,    591, 
592. 
where  all  estates  legal,  592,  note 

[V). 

Holder  of,  how  far  a  constructive 
trustee  for  remainderman  or  part 
owner,  227,  228. 
Purchaser,  if  not  delivered  to  assig- 
nees, must  give  attested  copies, 
and  covenant  for  production,  425. 
TORTIOUS, 

Conversion  of  trust  property,   275, 
754,825  ;  and  see  Conversion,  Fol- 
low. 
Sale  of  land  by  trustee,  763. 
of  stock  by  trustee,  356. 
TRADE, 

Allowance  for  management  is  given 
to  constructive  trustee,  548 ;  secus 
as  to  express  trustee,  549. 
Bank,  money  lodged  in  to  executors' 
account  considered  to  be  traded 
with,  361. 
Following  trust,  property  employed 

in,  760. 
Tenancy  in  common  implied  on  joint 

advance  for,  202. 
Trustee     employing    trust    money, 
charged   at   option    of  c.  q.  t. 
with  profits,  361,  362,  see  319; 
or  with  interest  at  51.  per  cent. 
362. 
whether  with  compound  interest, 
362,  363. 
TRADER.     See  Bankrupt,  Debts. 
TRANSMUTATION    OF    POSSES- 
SION.       See     Voluntary    Assu- 
rance. 
where   there    is,  the   trust    though 
voluntary  will  be  enforced,    81, 
99. 
and  where  there  is  not,  if  trust  be 
perfectly  created,  81. 
TRAVELLING, 

Expenses,  trustee  allowed  when  pro- 
per, 557. 
TREASON,  28.     See  Forfeiture. 
TROUBLE.    See  Trade. 

Allowance,  none  for  to  trustees  gen- 
erally, 545. 
nor  to  committees  of  lunatics,  ex- 
ecutors, mortgagees,  receivers, 
&c.,  546;  and"  see  Solicitor. 
Commission,  whether  allowed  to  exe- 
cutor in  East  Indies,  547  ;  and 
see  note  (/i). 


I  X  D  E  X. 


807 


TROUBLE,  continued. 

■wlieu  to  trustees  of  West  India  es- 
tates, 546. 
Contract,  whether  trustee  may,  with 
c.  q.  t.  for  allowance  for,  551, 
et  seq. 
must  be  fulfilled  to  the  letter,  553. 
trustee  may,  with  court,  before  ac- 
cepting trust,  553,  et  seq. 
whether  mortgagee  may,  for  allow- 
ance, 556. 
Settlor  may  direct  the  trustee  an  al- 
lo\vance,  550. 
it  will  not  cease  on  institution  of  a 

suit,  551. 
amount  where  not  known,  settled 
by  reference,  551. 
TRUST.      See    Abroad,    Advowson, 
Alien,  Breach  of  trust,  C.  q.  t., 
Feme   Covert,  Infant,   Overseers, 
Trustee,  Will. 
Accumulation  for,  110,  et  seq.;  see 

Accumulation,  Thellusson  Act. 
Alienation,  restriction  of,  not  allow- 
ed by  way  of  trust,  132  ;  but  see 
123. 
Averrable  at  common  law,  56. 
Charitable  or  public  trusts,  23  ;  see 

Charities. 
Classified,  c.  ii.,  p.  21. 
Consideration  for,  81,  et  seq.;   see 
Consideration,   Covenant,    Volun- 
tary Assurance. 
Construction  of,  141,  et  seq. ;   see 

Construction. 
Constructive,  c.  ix.,  p.  217 ;  distin- 
guished, 140,  note  (1) ;  see  Con- 
structive trusts. 
Contingent  remainders,  for  preserv- 
ing, c.  XV.,  p.  404.     See  Contin- 
gent Remainders. 
Created,  how ;  see  Creation  of  trusts. 
Creditors  for,  c.  xvii.,  p.  474;  see 
Debts. 
cannot  be  defeated  by  means  of 
trust,  132,  et  seq. 
Declared,  how  trusts  may  be,  56,  et 

seq.;  see  62,  65. 
Defined,  15. 
Delegation  of,  not  permitted,  290, 

et  seq. ;  see  Delegation. 
Discretionary,  21;    see  Discretion- 

ari/. 
Duration  of,  23,  103,  111.  _ 
Enforced,  where  consideration  valu- 

al)le  or  if  perfectly  created,  81. 
Estate  tail  in,  46,  004. 
Executed  and  executory  distinguish- 
ed, 144;  see  Execidori/  trusts. 
Express,  c.  vii.,  p.  140  ;  within  Stat. 
of  Limitation,  745,  748 ;  see  Ex- 


jyress  tnists. 
Frauds,  Stat,  of,  how  it  afi"ects  trusts, 
c.  V.  s.  2,  p.  60.  See  Frauds,  Stat. 

of- 
Imperfect,  p.  81,  et  seq. 
Implied,  c.  vii.  s,  2,  p.  167,  et  seq. ; 

distinguished,  140,  note  (1). 
Instrumental,  explained,  21. 
Intention   will   be   followed,  where 

lawful,  44,  100,  103. 
Lawful,  ■"..  VI.  s.  1,  p.  103  ;  see  22  ; 

and  Uhlaivful  trusts. 
Law,  by  operation  of,  140,  note  (1); 

see  Operation  of  Law. 
Limitation  of,  compared  with  legal 

limitation,  44,  103,  et  seq. 
Ministerial,  explained,  21. 
Money  followed  into  land,  206,  762  ; 

see  753,  et  seq. 
Mortmain  in,  132.     See  Mortmain. 
Nature  and  origin  of,  1 ;  of  modern 
trust,  8. 
administered  at  first  on  the  princi- 
ples   of    uses,    9  ;     afterwards 
treated  as  an  estate,  11,  12. 
Objects  of,  c.  VI.,  p.  103. 
Parol,  as  to  chattels  personal,  61  ; 

but  see  66. 
Perfect,  81,  et  seq.;  see  Considera- 
tion, Voluntary  Assurance. 
Perpetuity  cannot  be  created  by,  23, 

110,  132  ;  but  see  Public  trusts. 
Powers,  distinguished  from,  22,  see 

536,  701,  et  seq. 
Precatory,  167,  et  seq. ;  see  Implied 

trusts. 
Principles  governing  at  present  day, 

13. 
Properties  of,  in  analogy  to  legal 
estates,  c.  xxiii.  p.  600. 
assignment  of  a  trust,  600,  et  seq. ; 
assets,  a  trust  as,  681,  et  seq. ; 
curtesy  and  dower  of  a  trust, 
621,  et  seq. ;  descent  of  a  trust, 
680,  et  seq. ;  devise  of  a  trust, 
615  ;  escheat,  whether  it  affects 
a  trust,  678 ;  extents  from  the 
crown  against  a  trust,  673,  et 
seq. ;  feme  covert,  her  estate  in 
a  trust,  627,  et  seq. ;  forfeiture 
of  a  trust,  674  ;  judgments,  how 
they  affect  trusts,  646  ;  seisin 
and  disseisin  of  a  trust,  617  ; 
and  see  these  Titles. 
Property,  what   may  be  made  the 

subject  of  a  trust,  c.  xiv.  p.  45. 
Public  explained,  23. 
Recommendation,  whether  raised  by, 

102;  see  168. 
Renewable  leaseholds  of,  c.  xiv.  p. 
383  ;  see  licneicable  Leaseholds. 


808 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC. 


TRUST,  continued. 

Resulting,  c.  viii.  p.  176  ;  see  ^e- 
suUing  trusts. 

Sale,  c.  XYi.  p.  414 ;  see  Sale,  trus- 
tees for. 

Secret,  71,  et  seq.,  132;  see  Heir, 
Devisee. 

Separate  use  of,  feme  covert  for, 
120,  et  seq.,  631,  et  seq. ;  see 
Feme  Covert. 

Settlor,  who  may  be,  c.  iii.  s.  1,  p. 
24 ;  see  Settlor. 

Simple,  2,  21,  585,  et  seq.;  see  597. 

Special,  2,21,  597. 

Stat,  de  donis,  not  within,  603. 

Survivorship  of,  299  ;  see  Survivor- 
ship. 

Unlawful,  22,  131,  599;  see  Unlaw- 
ful trusts. 

Uses,  Stat,  of,  special  trusts  not 
within,  8,  247. 

Voluntary,  81,101;  see  Debts,  Volun- 
tary Assurance. 

"Word  "  trust"  may  raise  a  trust,  1G8. 
TRUSTEE.  See  Acceptance,  Acci- 
dent, Breach  of  trust,  Charities, 
Constructive  trust,  Contingent  Re- 
mainder, Corjjoration,  Costs,  Co- 
trustees, Debts,  Disclaimer,  Dower 
trustee,  False,  Forgery,  Fraud, 
Implied  trust.  Indemnity,  Insol- 
vent, Insurance,  Investment,  Judg- 
ments, Lien,  Misconduct,  Mistake, 
Neglect,  Notice,  Quasi-trustee,  Re- 
ceij)t,  Sale,  Solicitor. 

Actions,  where  to  be  brought  in  his 
name ;  see  Actions. 

Accounts,  he  must  be  ready  with, 
599;  and  see  427,  559. 

Advantage,  shall  not  derive  from 
trust,  318  ;  see  Advantage,  but  see 
Failure  of  c.  q.  t. 

Allowances  to,  c.  xx.  545  ;  see  Costs, 
Expenses,  Trouble. 

Bankruptcy  of,  273,  287,  711,  714, 
771,  854;  see  Bankruptcy. 

Bare,  see  318,  460,  536. 

Bare  equity  of,  596,  848. 

Burdens  of,  268,  et  seq.,  271. 

Claim  adversely  to  c.  q.  t.,  trustee 
must  not,  325;  see  878. 

Conveyance  by,  at  request  of  e.  q.  t., 
595 ;    of  assignee  of  c.  q.  t., 
600. 
on  sale,  424,  et  seq. ;    see   Con- 
veyance. 

Custody  of  trust  chattels  by,  332. 

Delegation,  may  not  make,  of  his 
office,  290  ;  see  Delegation. 

Disability  of;  see  Sale,  Trustee 
Acts. 


Discharge  of,  how  obtained  ;  see  In- 
demnity, Release,  Relinquishment. 
Distribution  of  trust  fund  by,  3G5, 

et  seq. 
Duties,  how  compelled  to  observe, 

718,  723  ;  and  see  Duties. 
Failure  of,  remedy  of  c.  q.  t.  against, 

c.  XXIV.  p.  693. 
Injoined,  may  be  against  breach  of 

trust,  723. 
Laches  of,  its  effect  as  to  right  of  c. 

q.  t.,  719,  et  seq.;  see  Laches. 
Legal  estate  in  its  devolution,  pro- 
perties   and    quantity   taken    by 
trustee,  c.  xi.  p.  246 ;  see  Legal 
Estate. 
Liability  of;  see  Co-trustees,  Liabi- 
lity. 
New,  appointment  of ;  see  Neio  trus- 
tees and  Trustee  Acts. 
Number  of,  what  is  proper,  40,  41, 

710 ;  see  Number. 
Outstanding  trust  estate  he  should 

get  in,  326. 
Payment  by,  372  ;  see  Payment,  Re- 
ceipts. 
Possession  of  trust  estate,  how  he 
may  obtain  in  court  of  law,  324, 
590. 
Powers  of,  general,   512 ;    special, 

524 ;  and  see  Powers. 
Privileges  and  burdens  of,  268,  et 

seq. 
Purchase  of  trust  estate  by,  460,  et 

seq.;  see  Sale,  trustees  for. 
Receiver,  he  cannot  be  of  trust  es- 
tate, 319. 
Release  by  or  to,  373,  et  seq. 
Relinquishment  of  office,  c.  xxi.  p. 

565 ;  see  Relinquishment. 
Renewal  of  lease  by,  383,  392  ;  see 

402. 
Suit  by,  367,  582,  768,  846,  850. 
Tort  of,  see  755,  825. 
Who  may  be,  c.  iii.  s.  2,  p.  30. 
alien  may  be,  of  chattels  personal, 
but  not  of  freeholds  or  chattels 
real,  39;  bank  of  England  can- 
not be,  32 ;  bankrupts  and  in- 
solvents not  absolutely  disquali- 
fied, 40,  see  711  ;  c.  q.  t.  or  re- 
lative generally  undesirable,  40, 
579 ;  corporation  maybe,  except 
where  in  contravention  of  Sta- 
tute  of  Mortmain,  31  ;    crown 
may  be,  but  qu.  as  to  remedy  of 
c.  q.  t.,  30 ;  feme  covert  or  sole 
may  be,  but  undesirable,  and 
why,  34,    35,    see    710;    infant 
ought  not  to  be  appointed,  35, 
895,  note  (m) ;  person  domiciled 


i 


INDEX. 


809 


TRUSTEE,  continued. 

abroad  generally  not  a  fit  trus- 
tee, 40  ;  and  see  574,  57G,  710. 
Words  "  trustee,"  "  trustee  of  inheri- 
tance," construction  of,  in  devise, 
250. 
'TRUSTEE     ACTS,     Generally,     c. 
XXVIII.  p.  832. 
Construction  of, 
7  Anne,  c.  19,  infancy  (as  to  lands), 

832,  833. 
4  Geo.  2,  c.  10,  lunacy  (as  to  lands), 

833. 
3G  Geo.  3,  c.  90,  infancy,  lunacy,  &c. 
(as  to  stock),  833,  834. 
amended  by  1  &  2  Geo.  4,  c.  114, 
834. 
6  Geo.  4,  c.  74,  consolidating  and 

extending  previous  acts,  834. 
Lord  St.  Leonards^  Trustee  Act,  11 
Geo.  4,  &  1  W.  4,  c.  60,  834,  et 
seq. 
sections  relating  to  infants  (as  to 
land),  835. 
to   lunatics    (as    to    land   and 

stock),  834,  835.  _     _     .    . 
to  persons  out  of  jurisdiction, 
&c.  (as  to  land),  835  ;  (as  to 
chattels  real,)    837  ;    (as   to 
stock,  &c.),  838. 
mode  of  application  to  court,  839, 

notes  (i)  and  [k). 
cases  of  constructive  trusts,  speci- 
fic performance,  trustee  having 
interest,  839.     See  Trustee  Act, 
ss.  2,  30. 
Tnistee  Act,  1850,  and  Extension 
Act,  840  ;  in  extenso,  880,  et  seq. 
Colonies,  as  to,  ss.  54,  56. 
Contingent  rights  ;  see  ss.  4,  8,  11, 

12,16,18. 
Conveyance  under,  889,  note  [t),  see 
895,  note  {q)  ;  as  to  copyholds, 
893,  note  (/) ;  see  s.  30. 
of  legal  estate  sufficient  where  all 
parties   before  the  court,  881, 
note  (6). 
Costs  under,  generally,  901,  note  («) ; 
infant  trustee,  &c.,  ib. 
in  case  of  lunatic  mortgagee  or 
trustee,  883,  note  (0  ;  of  sale, 
903,  note  (c). 
Decree  for    conveyance,  exchange, 
partition,   sale,  specific   perform- 
ance, under,  893,  903  ;  see  see.  30. 
Difficulty  or  expediency  of  appoint- 
ing new  trustees,  &c.,  895,  notes 
(m),  (n),  (o).  _ 

Durham  and  Lancaster,  lands  m,  s. 

21. 
Evidence  on  petition,  895,  note  (j)) ; 
May,  1858.— 52 


of  trustees'  assent  of  trustees'  fit- 
ness, ib. ;  and  see  890,  note  [w], 
Orders,  inf. 
Existing  trustee,  where  none,  court 
may   appoint    new   trustees,   see 
895,  note  {p) ;  Extension  Act,  s.  9. 
Infant  trustee  or  mortgagee,  ss.  7, 
8 ;  Extension  Act,  s.  3  ;  see  894, 
note  [k],  895,  note  (m),  901,  note 
(a). 
Ireland;  see  ss.  55,  56,  p.  901  ;  see 

note  (c). 
Jui-isdiction,  trustee  out  of,  ss.  9, 19, 

11,  12,  22;  mortgagee,  s.  19. 
Lunatic,  personal  representatives,  s. 
6  ;  trustee  or  mortgagee,  see  ss.  3, 
4,  5,  6. 
Mortgagee,  see  ss.  4,  5,  7,  8,  19. 
Number   of  trustees   appointed   by 

court,  895,  note  (jj). 
Orders  made  under  by  court,  on  alle- 
gation evidence  thereof,  s.  44. 
Petition,  who  may  present,  896  ;  in 
case  of  sales,  see  note  [t] ;  in  lots, 
903,  note  (c)  ;  service  of,  897,  note 
{v) ;  and  see  890,  note  {tv)  ;  891, 
note  (a). 
Refusing  trustee,  ss.  23,  24 ;  Exten- 
sion Act,  ss.  2, 4,  5 ;  mortgagee,  1 9. 
Scotland,  Trustee  Act  does  not  ex- 
tend to,  s.  54;  see  s.  56. 
Unborn  trustee,  s.  16. 
Unknown  heir,  &c.,  of  trustee,  13, 

14,  15,  22  ;  of  mortgagee,  19. 
Vesting  order,  see  ss.  26,  27,  28,  35  ; 
Extension  Act,  s.  2  ;  as  to  copy- 
holds, 893,  note  (e) ;  904,  note 
{d)  ;  chose  in  action,  s.  27. 
in  devisees  of  mortgagor  subject 
to  charge,  884,  note  (k)  ;  to  uses 
to  bar  dower,  ib. 
as  to  estate  tail,  885,  note  (?). 
in  new  and  continuing  trustees  as 

joint  tenants,  896,  note  (r). 
as  to  stock,  896,  note  (•?),  905, 
note  ig). 
TRUSTEE    RELIEF    ACTS.      See 
Lunatic  (Majority). 
10  &  11  Vict.  c.  96,  p.  375,  et  seq. ; 
General  Orders  under,  379,  381  ; 
Amendment  Acts,  12  &  13  Vict, 
c.  74,  p.  381  ;  and  as  to  money, 
&c.,  belonging  to  charitv,  see  IS 
&  19  Vict.  c.  124,  s.  22,  p.  382. 
affidavit  by  trustees,  379,  376,  note 

(s)  ;  Petition,  inf. 
application  by  petition  (not  motion, 
nor  in  the  first  instance  at  cham- 
bers.) 378,  note  (?/). 
account,  heading'  of,  376,  note  (?<)  ; 
and  see  note  \t). 


810 


LEWIN  ON  THE  LAW  OF  TRUSTS,  ETC 


TRUSTEE  RELIEF  ACTS,  continu- 
ed. 
costs  of  trustees,  376,  note  {s) ;  378, 
note   (?/) ;   380,  note   («) ;    see 

377,  note  {x). 

out  of  what  fund,  380,  note  (a). 

on  petition  by  tenant  for  life  for 
payment  of  dividends,  ib. 
discharge,   how   far    payment    into 

court  is,  377,  note  {x). 
inquiry  or  issue,  court  may  direct, 

377,  note  {iv),  378,  note  (z). 
payment  into  court,   after,  proceed- 
ings must  be  under  the  act,  376, 

note  (;•)  ;  see  also  377,  notes  {v) 

and  («•). 
petition,  trustees   can,   but    should 
not,  present,  378,  note  {y). 

by  claimant  in  forma  pauperis,  ib. 

how  far  it  should  set  out  affidavit 
of  trustee,  378,  note  [ij). 

what  order  may  be  made  upon, 

378,  note  (>/). 

service  on  trustee,  380,  note  {a)  ; 
on  claimant,  381,  note  (6). 

subject  matter  of  payment  or  trans- 
fer, what  may  be,  375,  et  seq., 
375,  note  (c). 
suit,  when  directed,  378,  note  (?/). 

UNCERTAINTY, 

Implied  trusts  not  raised  where  it 
exists,  168. 
of  objects  of  trusts,  169  ;  of  sub- 
ject matter  of  trust,  170. 
Resulting  trust,  on  conveyance  where 
trusts  too  vague,  181. 
UNDER-LESSEES, 

fines  of,  392. 
UNFITNESS, 

of  trustee,  574,  710,  711. 
UNLAWFUL  TRUSTS, 

C.  Ti.  s.  2,  p.  131 ;  and  see  22,  71, 

73,182,599. 
Alien  for,  132  ;  alienation  (restraint 
against,)  132,  et  seq. ;  charity  for, 
132  ;  chattels,  limitations  of,  131  ; 
corporation  for,  131. 
illegitimate     child     (future),    131  ; 
maintenance,  133;  simony,  136; 
splitting  votes,  137  ;  and  see  those 
titles    and     Cohabitation,    Mort- 
main, Secret  Trusts. 
Consequences  of  creating,  137. 
estate  may  be  recovered  by  person 
claiming  under  settlor,  138  ;  or 
by   settlor    himself,   where   no 
fraud,  139  ;  otherwise  court  will 
not  interfere,  137,  et  seq. 
USAGE, 

how  far  evidence  in  construction  of 


religious  trust,  497. 
USE, 

Averrable,  56  ;  but  not  where  deed 
required  to  pass  estate,  57 ;  and 
see  6,  note  (1). 

Charitable.     See  Cliaritahle  Uses. 

Defined,  2. 

Devisable  before  statute,  615. 

Disclaimer  of,  236. 

Estate  on  which  it  could  be  declar- 
ed, 5 ;  whether  on  a  feoffment  in 
tail,  5  ;  and  see  7,  note  (1)  ;  whe- 
ther upon  an  estate  for  life,  5,  6, 
note  (1),  7,  note  (1). 

Executed  under  statute,  whether  de- 
signated as  trust  or  use,  246,  254. 

Powers  before  Statute  of  Uses,  537, 
note  (1). 

Trusts,  special,  and  of  chattels  ex- 
cepted from,  7,  247. 
USUAL  POWERS, 

what  powers  authorized  by  these 
words,  164,  note  (x),  165. 

how  qualified  by  context,  165. 

VALUATION, 
how  trustee  for  sale  should  make, 
421. 
VALUE.    See  Consideration,  Invest- 
ment. 
VARY, 

power  to  vary  securities,  523 ;   see 

169. 
whether  it  implies  power  to  give  re- 
ceipts,  523  ;    a   "  usual   power," 
164. 
VENDOR, 
a  trustee  sub  modo  for  purchaser, 

175. 
accountable  to  purchasers  for  rents, 
&c.,  unhusbandlike  farming,  wil- 
ful waste  or  neglect,  174. 
VESTING    ORDER.      See    T)-usiee 

Acts. 
VESTRY,  109.     See  ParisJiioners. 
VISITOR, 

Crown   is  in   civil  corporations,  by 
Court  of  Queen's  Bench,  495. 
may  be  in  eleemosynary  corpora- 
tions, by  terms  of  foundation,  or 
where  heir  of  founder  unknown 
or  lunatic,  495. 
visitatorial   power   committed   to 
lord  chancellor,  495. 
Office  of,  he  must  follow  statutes  of 
the  founder,  492. 
whether  his  decision  can  be  ap- 
pealed against,  492. 
new   donations   distinguished,  in 
respect    of   visitatorial    power 
from  original  endowment,  493. 


IXDEX. 


811 


VOID.     See  Infant,  Lunatic. 
Accumulation.     See  Accumulation, 

Thellusson  Act. 
Trust.     See   Duration,   Mortmain, 
Perxietuity,  Uncertainty. 
VOIDABLE.      See  Infant,  Lunatic, 

Voluntary  Settlement. 
VOLUNTARY  AQREEMENT.  See 
Covenant, 
not    specifically    executed    tlaough 
under  seal,  93,  94,  and  comp.  207. 
how  far  provable  in  equity  as  a  debt, 
94:  note  ie). 
VOLUNTARY 'assurance.    See 
Consideration,  Meritorious. 
Trusts  supported  if  perfectly  created, 
81. 
not  perfectly  created  when  further 

act  intended,  81. 
once  perfectly  created  is  not  sub- 
sequently defeasible,  99 ;  comp., 
207,  215. 
distinction  between  voluntary  as- 
signment of  expectancy  and  in- 
terest, 92. 
no  trust  unless  intention  to  create 
it,  100. 
Equitable  property,  of,  where  settlor 
declares  himself  trustee,  trust 
is  perfectly  created,  82. 
where    settlor  appoints   stranger 
trustee,  assignment  to  new  trus- 
tee sufficient,  89. 
and  good  against  assignor  without 
notice   to   former  trustee,  91 ; 
see  280,  note  {ij). 
where  new  trustee  created  without 

new  trustee,  91. 
assignmentto  stranger  for  his  own 
benefit,  91. 
Legal  property  where  settlor  declares 
himself  trustee,  trust  is  perfectly 
created,  82. 
where   settlor  appoints    stranger 
trust  transfer  necessary,  if  pos- 
sible, e.  g.  in  land,  chattels,  or 
stock,  84. 
case  of  legal  pi-operty  incapable  of 
legal  transfer,  e.  g.,  chose   in 
action,  85  ;  and  see  89. 
VOLUNTARY  SETTLEMENT, 
Land  or  chatties  real,  of,  defeasible  by 
subsequent  sale  by  settlor,  92. 
but  not  by  settlor's  heir  or  devisee, 

93. 
c.  q.t.  cannot  prevent  sale  or  obtain 

redress,  93. 
settlor  cannot  enforce  contract  for 
sale  against  purchaser,  but  pur- 
chaser may  against  settlor,  93. 
power  of  settlor  to  defeat  by  sale, 


not  a  disposing  power  under  1 
&  2  Vict.  110,  s.  11,  13  ;  G(3G, 
note  (a), 
real  or  personal  estate,  of,  by  one 
indebted,  defeasible  by  creditor, 
93. 
Trustees  of,  bound  to  preserve  con- 
tingent remainders,  405. 
VOLUNTARY  TRUST.    See  Debts, 

Vohmtary  Assurance. 
VOLUNTEER, 

Assign  of  trust  estate  presumed  to 
have  notice,  19  ;  and  see  224,  228, 
279,  406. 
Trust  estate  followed  in  his  hands, 

724. 
Time  no  bar  in  case  of  express  trust, 
745. 
as  to  constructive  trust,  see  729, 
733. 
VOTES.     See  Member  of  Parliament, 
Parisliioners. 
purchase  for  purpose  of  giving,  137  ; 
does  not  raise  resulting  trust,  203. 
VOUCHERS, 

c.  q.  t.  may  inspect,  but  must  pay 

for  copies  of,  428;  and  see  599. 
Trustees  may  keep,  428. 

need  not  be  kept  for  ever,  741 ; 
lost,  739. 

WAIVER, 
what  is,  737. 

what  consideration  sufficient  for,  737. 
WARD.     See  Guardian. 
WASTE, 

Equitable,  225. 

Permissive,  by  equitable  tenant  for 
life,  514 ;  by  legal  tenant  for  life, 
514,  note  («). 
Tenant  for  life  without  impeachment 
of,  trustees  should  not  purchase 
wood  estate  in  his  favour,  421. 
Trustees  to  preserve,  their  duty  to 
prevent,  408,  413. 
WASTING  PROPERTY, 

as  leaseholds,  long  annuities,  where 
to  be  converted,  808,  et  seq.     See 
Conversion. 
WEST  INDIES, 

equities  relating   to   estate   in,  en- 
forced here,  47 ;    and  see  Jfuri-s- 
diction. 
trustees  for   estates  there,  whether 
entitled  to  commission,  546. 
WESTMINSTER, 

Stat,  of,  647. 
WIFE.     See  Feme  Covert. 
WILFUL  DEFAULT, 

account  for,    not  given  on  further 
directions,  765. 


812 


LEWIN    ON    THE    LAVv^    OF    TRUSTS,    ETC. 


WILFUL  DEFAULT,  continued. 

where  directed,  752,  see  766. 
WILL.     See  Deed.    Wills,  Stat.  of. 
Ambulatory  till  testator's  death,  66. 
Consideration  it  implies,  58,  167. 
Copyholds  of,  45,  see  note  {«),  60  ; 
see  note  (1) ;  of  equitable  estate 
in,  45,  615,  616  :  where  no  cus- 
tom to  devise  legal  estate,  45, 
616. 
under  late  Wills  Act,  60,  617. 
Customary  freeholds,  of,  617  ;  equi- 
table estate,  in,  617. 
Executory  trusts,  construction  of  in 
wills,  153,  et  seq. ;  see  Executory 
trusts. 
Feme  covert  of,  as  to  separate  estate, 

642. 
Freeholds  of,  under  Stat,  of  Frauds, 
65;  equitable  estate,  in,  615. 
under  late  Wills  Act,  617. 
Infant   of  fourteen  might  formerly 
make,  of  personal  estate ;   secus 
now,  27. 
Land  of,  to  be  converted  into  money, 

807. 
Money  of,  to  be  laid  out  in  land,  796. 
Power  to  appoint  by,  contemplates 
those  who  answer  description   at 
death  of  donee,  170,  704 ;  and  see 
Assets. 
Personal  estate  of,  under  Statute  of 
Frauds,  65  ;  under  late  Wills  Act 
617. 
Settlement,  will  distinguished  from 
as  regards  duties  of  trustees  to 
preserve,  410. 
Sovereign  of,  25. 
Stock  of,  how  formerly  made,  32, 

note  (1). 
U^se,  devise  of,  615. 
devise  to  uses,  construction  as  to, 
258. 
WILLING  AND  DESIRING, 

may  create  a  trust,  167. 
WILLS, 

Statutes   of,   c.   v.  s.    3,    p.  65; 
see     Leg(d     Estate,    liesiduarij 


(devise). 

trusts  cannot  be  created  by  devise 
or  bequest  without  formalities  re 
quired  for  wills,  66  ;  see  as  to 
personal  estate,  68,  and  see  69, 
note  (rt). 

except  in  case  of  charge  of  debts 
and  legacies  on  real  estates  before 
1st  Jan.,  1838,  69  ;  (and  how  far 
exception  extends),  and  in  case 
of  fraud,  70. 

devise  to  uses,  258. 
WISHING  AND  REQUESTING. 
WORDS.  See  Consent,  Construction, 
Executory  Trusts,  Grant,  Invest- 
ment, Technical  Terms;  "  heirs,"' 
141 ;  "  heir  male,"  154  ;  "  heirs 
female,"  149  ;  "  heirs  of  the  body," 
see  this  title  ;  "  issue,"  149,  156  ; 
"it  shall  be  lawful,"  see  386;" 
"  shall  and  may,"  in  act  of  parlia- 
ment, 301,  note  (c) ;  "request," 
"  require,"  see  these  titles,  "  sub- 
ject thereto,"  191;  "trustee," 
"  trustee  of  inheritance,"  250. 

implying  restraint  against  anticipa- 
tion, 123,  632,  note  {to) ;  separate 
use,  121,  et  seq. ;  trust,  107  ;  but 
seel70,  171. 

supplied  in  articles,  153. 
WORSHIP  OF  GOD, 

construction  of  trust  for  maintain- 
ing, 497,  et  seq. 
WRITS  OF, 

distringas,  see  Distringas,  860,  et 
seq. 

execution  at  common  law,  646. 
WRITING, 

Assignment  of  equitable  interest  by, 
600. 

Request  for  sale  to  be  testified  by, 
419. 

Trust,  note  in  (not  under  seal)  suffi- 
cient to  declare,  56. 
but  in  case,  of  wills,  see  Qd,  68, 
and  69,  note  (a). 

Trustee  may  sue  before  having  ac- 
cepted the  trust  by,  243. 


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